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Executive Detention and Guantanamo Bay

Guantánamo and Beyond:
A Blog on Executive Detention, National Security and Due Process

by Fernando A. Bohorquez, Jr., Esq. & Patrick T. Campbell, Esq.

The decade following the September 11 attacks has seen an ongoing and unprecedented constitutional dialogue between the Executive, Legislative and Judicial branches concerning the most fundamental issues of national security, individual liberty and due process. Central to this discussion are the detention, treatment and trial of those detained at the Guantánamo Bay Naval Base at Guantánamo Bay, Cuba (“Guantánamo”) and elsewhere in the aftermath of the September 11 attacks and the invasion of Afghanistan. The New York State Bar Association’s Committee on Civil Rights reports on the current developments pertinent to this important civil rights topic through its blog Guantánamo and Beyond: A Blog on Executive Detention, National Security and Due Process, or the GBB for short. Below is an introduction to the Committee’s blog followed by a background discussion on the issues.

The Guantánamo detainees have been the subject of no less than four landmark Supreme Court decisions, several acts of Congress and dozens of Executive Orders. Each decision, each piece of legislation and every Executive action has triggered and will likely continue to trigger a debate of constitutional dimensions. In many ways, Guantánamo has become an allegory for the post-September 11 world highlighting the perceived tension between the need to protect against future terrorist attacks and our nation’s commitment to the rule of law. By the numbers, approximately 800 detainees have been held at Guantánamo since January 2002. As of January 21, 2010—almost one year after President Obama issued an Executive Order to close Guantánamo—196 remain. On or around January 22, 2010, the Administration’s Guantánamo Task Force recommended that 110 of these detainees be released to a third country.

Along with closing Guantánamo, one of the largest challenges going forward is choosing the forum in which the remaining Guantánamo detainees should be tried. First and foremost are the five detainees allegedly responsible for the September 11 attacks. The Obama Administration initially decided to prosecute Khalid Sheikh Mohammed and his accomplices in federal court in lower Manhattan. On the other end of the spectrum, several detainees have faced and will likely continue to face charges before military commissions. Though there has been no final determination regarding how many detainees will go before civilian trials or military commissions, the Guantánamo Task Force recommended that about 35 detainees should stand trial in one forum or the other. While federal trials and military commissions proceed, hundreds of detainees have filed habeas petitions in the D.C. District Court challenging the lawfulness of their detentions by the Executive. Of the 41 decided petitions, 32 have been granted. The Guantánamo Task Force also recommended that nearly 50 Guantánamo detainees be held without charges or trial because they are allegedly considered too dangerous to be released and trials could jeopardize intelligence gathering and harm national security.

The New York State Bar Association’s (the “NYSBA”) Committee on Civil Rights (the “Committee”) has been very active on the issue of the Executive detention of those detained at Guantánamo. As discussed below, the Committee has authored several reports and resolutions and held various programs on the issue.

The GBB is the latest project by the Committee in this endeavor. The purpose of the blog is to provide an easy reference for NYSBA members and the general public to access in one location the latest developments on these constantly evolving issues. The blog will cover timely news and analysis concerning the detention and trial of those apprehended and held in the struggle against international terrorism and the ongoing and emerging policy issues endemic to that conflict. For a detailed background on the events, precedents and jurisprudence that lay the foundation for the current debate, continue reading. If you would like to go straight to the blog, click here.

Executive Detention, Habeas Corpus and the Military Commissions Act of 2006

Beginning in January 2002, the U.S. detained at Guantánamo hundreds of individuals who were labeled “enemy combatants,” and—at least initially—asserted that they fell wholly outside the purview of the U.S. judicial system. Two years later, the Supreme Court held in Rasul v. Bush that non-citizens detained at Guantánamo as “enemy combatants” had a statutory right under the federal habeas statute to challenge the lawfulness of their detention. On the same day in Hamdi v. Rumsfeld, a plurality of the Supreme Court held that Mr. Hamdi—a U.S. citizen captured in Afghanistan, initially detained at Guantánamo, and then ultimately transferred to a navy brig in Charleston, South Carolina—had the right to challenge his indefinite detention in federal court. The plurality also expressed the minimum amount of process due, which included notice of the factual basis for detention, a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker, and access to legal counsel during the proceedings.

In response to Hamdi and Rasul, the Bush Administration created Combatant Status Review Tribunals (“CSRT”) to determine the status of Guantánamo detainees. Congress also passed the Detainee Treatment Act of 2005 (“DTA”),which limited review of the CSRT decisions to the D.C. Circuit Court of Appeals and removed Guantánamo habeas petitions from the jurisdiction of the federal district courts. However, in Hamdan v Rumsfeld, the Supreme Court invalidated the DTA’s habeas stripping provisions, holding that the provisions did not apply to cases pending when the DTA was enacted. Hamdan also rejected the Administration’s military commissions established at the time to try “enemy combatants” as violative of the Uniform Code of Military Justice (“UCMJ”), American common law of war, and all four 1949 Geneva Conventions. Within months of the Hamdan decision, Congress passed the Military Commissions Act of 2006 (the “2006 Act”) which, among other things, explicitly stripped federal courts of jurisdiction to hear any Guantánamo detainee habeas petitions. The 2006 Act also granted the Executive the authority to try detainees by military tribunal.

NYSBA Committee on Civil Rights

Soon after passage of the 2006 Act, the Committee, along with the New York Chapter of the American Constitution Society and the Cardozo Public Interest Law Students Association, sponsored a panel titled The Military Commissions Act of 2006 and Executive Power: Interrogation, Detention and Prosecution in the War on Terror at the Benjamin N. Cardozo School of Law. The panel included Jamil Dakwar, Senior Human Rights Attorney for the ACLU, Timothy Bakken, Professor of Law at the United States Military Academy, Westpoint, and Visiting Scholar at Columbia University School of Law, Joanne Mariner, Terrorism and Counterterrorism Program Director for Human Rights Watch, and Hina Shamsi, Senior Counsel, Law and Security Program of Human Rights First.

At the NYSBA 2008 Annual Meeting, the Committee sponsored the panel Boumediene and the Military Commissions Act: The Battle before the Supreme Court over Habeas Corpus and Executive Detention in the War on Terror. The panel addressed whether aliens detained by the Executive branch at Guantánamo have the right to challenge their detention under the writ of habeas corpus. Panelists included Jonathan Hafetz, Liberty and National Security Project of the New York University School of Law’s Brennan Center for Justice, Margaret Stock, Associate Professor at the West Point U.S. Military Academy Department of Law, and Emi Maclean, Center for Constitutional Rights, and moderator Sidney S. Rosdeitcher, Of Counsel with Paul, Weiss, Rifkind, Wharton & Garrison LLP, former chairman of The Association of the Bar of the City of New York’s Committee on Civil Rights and current chairman of the City Bar’s Task Force on National Security and the Rule of Law.

A month before the landmark Supreme Court Boumediene v. Bush decision (Boumediene is described below), the Committee released its Report on Executive Detention, Habeas Corpus and the Military Commissions Act of 2006 (the “Report”). The Report provides an extensive overview of habeas corpus as the traditional bulwark against the excesses of the Executive, surveys the relevant provisions of the UCMJ and the Geneva Conventions, and describes, from the attacks of September 11 to the appeal of the D.C. Circuit’s decision in Boumediene v. Bush to the Supreme Court, the ongoing dialogue between all three branches of Government concerning executive detention in the “War on Terror.” The Report concluded that (1) the habeas-stripping provisions of the 2006 Act were unconstitutional, (2) Congress should review the current system for detaining and trying suspected terrorists and select a system consistent with fundamental protections of due process, such as notice, the right to counsel, and the reasonable opportunity to present evidence challenging detention, and (3) Congress should consider extending habeas corpus to all detainees within the custody of the U.S. Government held at foreign locations, such as Bagram Air Force Base in Afghanistan, within the de facto control of the U.S.

Boumediene and its Aftermath

In June 2008, the Supreme Court held in Boumediene that those designated as “enemy combatants” and detained at Guantánamo were constitutionally entitled to the writ of habeas corpus to challenge in federal court the legality of their detention. In reaching this decision, the Boumediene Court held that the DTA review process, including the CSRTs which, according to the Court, carry a “considerable risk of error,” was an inadequate substitute for habeas corpus. Notably, although the Supreme Court unequivocally ruled that the Guantánamo detainees were due their day in court, the Court did not spell out what process they were due when they got there.

At its June 2008 Annual Meeting, days after the ruling, Fernando A. Bohorquez, Jr., Chair of the Committee on Civil Rights, presented the Committee’s May 2008 Report to the House of Delegates and urged the House to pass a newly minted resolution adopting the Committee’s Report and endorsing the Supreme Court’s recent Boumediene decision. The House overwhelmingly passed the resolution. For more information, see:

With the availability of habeas review settled by the Boumediene Court, the Committee turned to the process due to Guantánamo detainees on habeas review. The Committee authored the Supplemental Report on Boumediene v. Bush and the Procedural Framework for Guantánamo Detainee Habeas Petitions in July 2008 which addressed the procedures due to detainees on habeas review. While recommending several bright line rules in the context of burdens of proof, discovery and the admissibility of and access to evidence consistent with established U.S. laws and jurisprudence, the Committee concluded that the federal district courts should establish a procedural framework for Guantánamo detainee habeas petitions balancing the petitioners’ substantial liberty interests against the Government’s legitimate national security concerns.

President Obama’s Executive Orders

In one of his first acts as President, on January 22, 2009, President Obama signed three executive orders concerning Guantánamo. The first order (the “Detainee Order”) required the closure of Guantánamo within a year. The Detainee Order also called for the creation of the Guantánamo Review Task Force for the immediate review of the status of the then approximately 242 remaining Guantánamo prisoners, with repatriation or transfer to third countries for detainees that are found to be eligible for release. The Detainee Order also suspended all Military Commissions for a four-month review of the proceedings and all Government personnel were ordered to treat detainees in accordance with the Geneva Conventions. The second order (the “Interrogation Policy Order”) established the Special Interagency Task Force on Interrogation and Transfer Policies and called for the reformulation of the Government’s detainee policy. The Interrogation Policy Order also bars the use of torture and ensures all interrogation techniques are in compliance with the Army Field Manual. The third executive order (the “Detention Policy Order”) established the Special Interagency Task Force to review the Government’s current detention policy and recommend more legally sound options.

In response to President Obama’s executive orders, the Committee cosponsored, with the Bar Association of Erie County, the Beverly Hills Bar Association, and the ABA’s Task Force on Treatment of Enemy Combatants, a resolution calling for the Obama Administration to ensure that Guantánamo detainees received all due process rights afforded to them by law. The resolution specifically urged President Obama to (1) prosecute those detainees charged or expected to be charged with criminal charges in federal court unless the Attorney General certifies that they must be tried in other kinds of federal tribunals, such as courts-martial or a yet-to-be-created national security tribunal, (2) promptly release or resettle those individuals detained at Guantánamo who are no longer considered to be “enemy combatants,” (3) grant detainees prompt habeas corpus hearings with full due process rights and access to counsel, subject to appropriate conditions as may be set by the habeas court, and (4) not detain any individual as an “enemy combatant” except pursuant to an act of Congress. Mr. Bohorquez presented the Committee’s resolution to the American Bar Association’s House of Delegates at its 2009 mid-year meeting. The ABA adopted the resolution. Below are links to materials regarding this event:

Criminal Trials, Military Commissions and Habeas Proceedings in the Obama Administration

President Obama followed his January 2009 executive orders with his May 21, 2009 Speech on National Security, where he outlined his Administration’s plans for the future of Guantánamo and its detainees. The Obama Administration’s policy moving forward groups the detainees into five distinct categories: (1) detainees charged with violating American criminal laws to be tried in Article III courts; (2) detainees charged with war crimes to be tried by reformulated Military Commissions that will, with input from the other branches of Government, conform to the rule of law; (3) detainees ordered released by habeas courts to be processed for release; (4) detainees cleared by the Government for transfer to another country; and (5) detainees who present a clear and present danger to the national security interests and safety of the United States but may not be tried before a federal court or military commission.

Several Guantánamo detainees with pending military charges and a man charged with attempting to blow up an American commercial plane have been recently slated for prosecution in Article III courts. On November 13, 2009, the Departments of Justice and Defense announced that five Guantánamo detainees alleged to be 9/11 conspirators—Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi—will face criminal charges in the Southern District of New York (the specific location of these trials, however, is currently in question). Another Guantánamo detainee scheduled to face criminal charges in the Southern District of New York is Ahmed Khalfan Ghailani, a Tanzanian man charged with over 200 counts of murder related to the 1998 U.S. Embassy bombings in Tanzania and Kenya. Finally and most recently, Umar Farouk Abdulmutallab—the “Christmas Day Bomber” charged with the failed attempt to bomb an airliner on Christmas Day 2009—will be tried in federal district court.

In the meantime, detainee military commissions press forward. After much lobbying by President Obama, Congress passed the Military Commissions Act of 2009 (the “2009 Act”), which replaced the much-maligned 2006 law under the same name. President Obama signed the 2009 Act into law on October 28, 2009.

The 2009 Act retains the basic structure of the old military commissions—a military judge presides over the panel ruling on issues of law and evidence with a panel of U.S. service members act as jurors deciding issues of fact and guilt or innocence. The 2009 Act, however, affords detainees additional protections absent from the 2006 Act. For instance, detainees have the right to competent, experienced defense counsel, particularly if the detainee might face the death penalty. The new commissions require the exclusion of most statements obtained involuntarily or through torture or cruel, inhuman, or degrading treatment. Further, the admission of hearsay evidence has been narrowed, and subject to exceptions similar to the Federal Rules of Evidence.

On the other hand, some critics of the new law maintain that while the 2009 Act is an improvement over its predecessor, the process it affords detainees remains substandard. For instance, the new commissions allow the admission of coerced or involuntary evidence, albeit in certain circumstances. Further, detainees can be tried by military commission for conspiracy and providing material support for terrorism, which critics argue are not traditional war crimes.

According to a November 2009 report by the McClatchy Washington Bureau, the Pentagon has to date brought military commission charges against 26 Guantánamo detainees. Three of these detainees—the so-called Australian Taliban David Hicks, Osama bin Laden’s former driver Salim Ahmed Hamdan, and al Qaeda media secretary Ali Hamza al Bahlul—have all been convicted by military commission. Messrs. Hicks and Hamdan were convicted of the lesser charge of providing material support to terrorism and sentenced to little more than time served. Mr. Bahlul, sentenced to life in prison, was convicted of providing material support to terrorism, conspiracy and solicitation to commit murder. On November 13, 2009, the Departments of Justice and Defense determined that the prosecutions of five Guantánamo detainees would go forward by military commission. These detainees include the detainee accused of orchestrating the October 2000 attack on the USS Cole, which killed 17 U.S. sailors and injured dozens of others, and a detainee who is accused of participating in an al Qaeda plot to blow up oil tankers in the Straits of Hormuz. In addition, a sixth detainee, alleged to have supported al Qaeda and planted mines in Afghanistan, may be headed for a military commission.

At the same time that various detainees are facing prosecutions before federal courts and military commissions, detainee habeas proceedings continue. Since the Boumediene decision in June 2008, more than 200 detainees have filed habeas corpus petitions. In 32 of the 41 decided cases as of January 22, 2010, the court granted habeas petitions finding that the Government had failed to provide credible evidence supporting detention. Of the 32 found to be unlawfully imprisoned by the federal court, 11 remain in indefinite detention. Click here for an updated, interactive chart detailing the progress of the Guantánamo detainee habeas petitions.

In one habeas proceeding heard on appeal, the D.C. Circuit held that the power of the Executive to detain those suspected of terrorism is not limited by the international laws of war. In its January 5, 2010 decision in al-Bihani v. Obama, the D.C. Circuit decided that habeas review for Guantánamo detainees need not match the procedures developed by Congress and the courts for habeas challenges to criminal convictions. The Court specified, in pertinent part, that (1) the Government need only establish the legality of detention by a preponderance of the evidence, (2) the protections of the Confrontation Clause do not apply to habeas proceedings, and (3) unlike under the Federal Rules of Evidence, hearsay evidence is always admissible but the probative weight assigned to such evidence depends on its indicia of reliability.

The issue of habeas review extends to Bagram Air Base in Afghanistan (“Bagram”). According to a Department of Defense list obtained by the ACLU in a Freedom of Information Act request, the U.S. currently detains more than 600 prisoners at Bagram. Some of these prisoners have been detained at Bagram for as long as six years, and all allegedly in harsh conditions with no access to lawyers, no right to hear the allegations against them, and only rudimentary reviews of their status as “enemy combatants.” Until recently, detentions at Bagram have also been kept outside of the judicial review process.

In mid-September 2009, the Obama Administration unveiled new guidelines aimed at giving Bagram detainees a greater ability to challenge the lawfulness of their detention. Bagram detainees would still not have access to counsel, but they would be provided with U.S. military officials who would act as their representatives and help them gather witnesses and evidence to challenge their detention before a military-appointed review board. New panels would review detentions every six months.

However, the Obama Administration maintains its opposition to judicial review of detentions at Bagram. In September 2009, the Government appealed the D.C. District Court’s April 2009 decision in al Maqaleh v. Gates, which granted three non-Afghan Bagram prisoners who were apprehended outside of Afghanistan, and who have been incarcerated for more than six years, the same right to federal habeas that Boumediene afforded Guantánamo detainees. In the portion of the opinion not opposed by the Government, the district court also concluded that Afghan citizens at Bagram cannot file habeas petitions challenging their detention in federal court. The Government successfully moved to stay the Bagram detainee habeas proceedings while its appeal of the al Maqaleh decision is pending. On January 7, 2010, the D.C. Circuit heard oral argument in al Maqaleh.

The Current Status of Guantánamo

President Obama’s one-year deadline for closing Guantánamo proved to be too ambitious and was missed. Concededly, the Administration has faced obstacles in closing the prison camp, including resistance to transferring certain detainees to U.S. soil, difficulties in obtaining Congressional funding necessary to close Guantánamo, finding host countries for detainees cleared for release, transferring the appropriate detainees to federal and military courts for prosecution, and establishing a coherent and constitutionally sound position for the remaining detainees.

The Christmas Day Bomber case further complicates Guantánamo’s closure. Mr. Abdulmutallab was allegedly trained and directed by al-Qaeda in Yemen, the country which may have served as the destination for 60 of the detainees the Guantánamo Task Force recommended for conditional release. Shortly after the attempted Christmas Day bombing, President Obama declared “given the unsettled situation, I have spoken to the attorney general and we’ve agreed that we will not be transferring additional detainees back to Yemen at this time.” Without setting an exact date, Obama revised the deadline for shutting down Guantánamo for some time in 2010.

Several detainees have already been relocated to other countries, including Bermuda, Chad, Iraq, Saudi Arabia, Afghanistan, Portugal, and Ireland. Spain claims it will also accept detainees, but has yet to decide how many. Also, 11 of the detainees ordered to be released on habeas review are still being held, as the Government has yet to find a place to release them. As of January 21, 2009, 196 detainees remained imprisoned at Guantánamo.