Should the US close the military prison on Guantanamo Bay?

Yes

3 of 25

by Augustine Bauer

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In the 2008 Supreme Court case, Boumedienne v. Bush, the Court faced questions about the constitutionality of the use of military tribunals to review the cases of Guantanamo Bay detainees. The question of detainees' claim to habeas corpus was also raised.

These tribunals, legalized by the Detainee Treatment Act of 2005 (DTA), have faced considerable opposition. Many argue that these Combat Status Review Tribunals (CSRTs) do not adequately provide for the detainees' rights under the United States' Constitution. It is known that detainees are not informed of the charges against them, are not provided with adequate legal representation, and are subject to spending years in confinement before their case is brought before a tribunal. It has also been claimed that detainees are prevented from calling witnesses to their defense based on the excuses of a biased court.[1]

Others, however, have argued that, as non-citizens, detainees are not guaranteed habeas corpus under the United States' Constitution, that the military tribunals satisfactorily provide for those rights detainees do hold, and that Guantanamo Bay is not under the jurisdiction of United States' Federal Courts.

In Boumedienne v. Bush the Justices had to answer the questions 'Are the military tribunals adequate?'; 'Are Guantnamo Bay detainees entitled to the writ of habeas corpus?'; 'Do federal courts have jurisdiction over these cases?'. The Majority answered 'yes' to the last two questions, effectively banning the use of military tribunals. However, they failed to provide a new plan for efficiently and constitutionally reviewing the detainees' cases. The Supreme Court decision allows detainees to petition their confinement in United States' courts. However, it leaves it up to the district courts to decide on a case-by-case basis the process by which these cases are to be heard, and the constitutionality of holding the detainees at all.

In his dissenting opinion, Chief Justice Roberts wrote,

"How the detainees' claims will be decided now that the DTA is gone is anybody's guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted need to protect the American people from the terrorist threat- precisely the challenge Congress undertook in drafting the DTA. All that today's opinion has done is shift responsibility..."[2 ]

If Roberts is correct, detainees may not see much change at all as a result of the Supreme Court hearing.

Chief Justice Roberts also argued that the Supreme Court Majority had decided the case on the wrong grounds. The Majority made it clear that the detainees are entitled to habeas corpus. However, habeas corpus is primarily present in the Constitution to ensure that the people's natural rights are not disregarded. Therefore, argues Roberts, if the detainees rights have not been violated in the first place, the question of habeas corpus need not be brought up:

"Habeas is most fundamentally a procedural right, a mechanism for contesting the legality of executive detention. The critical threshold question in these cases, prior to an inquiry about the writ's scope, is whether the system the political branches designed [the Combat Status Review Tribunals] protects whatever rights the detainees might posses. If so, there is no need for any additional process, whether called 'habeas' or something else,"[3]wrote Roberts.

On this particular objection, I am inclined to agree with Chief Justice Roberts. I believe that the detainees are entitled to habeas corpus and all other rights granted United States' citizens under the Constitution - the Founders claimed natural rights for all men, and as a country which promotes Republican Democracy we should treat all men under our control with the spirit of our Constitution in mind. However, the Supreme Court decision in Boumedienne v. Bush does very little to secure the detainees' rights. Roberts obviously feels that the new 'system' will soon evolve to be the same, or similar to, the old; the Court never stated what rights the detainees hold; and, while the unfair tribunals used until now have been abolished, a new system for trying detainees' cases has yet to be set up. Although at first this change seemed like a victory for the detainees, there seems little real benefit for them in Boumedienne v. Bush.

In addition, during our Mock trial it was pointed out to me that finding a 'fair and impartial jury'[4] for Guantnamo detainees might be impossible in the United States. It is true that there will be an even greater risk of a biased jury in this case, than there is with regular cases. In the aftermath of September 11th, spreading mass hysteria put every Muslim American under suspicion. Such prejudices against Muslims have not entirely left us.

The other argument made by those who support the current Detainee Treatment Act tribunal system, is that Guantnamo Bay is neither an American state nor an American territory, and therefore is not under the jurisdiction of United States' Federal Courts. It seems to me, that since using this argument takes the power to try detainees away from the executive branch, and the authority of military tribunals is already in dispute, this abdicates our responsibility and ultimately leaves the Cuban government to sort out the whole mess. However, the lack of US jurisdiction argument is clearly flawed when you consider that refugees from the Cuban government need only run as far as Guantanamo to be protected by the United States' government. Indeed, even the lizards at Guantanamo Bay are protected by a United States' wildlife protection law.

Were I in a position to influence America's treatment of Guantanamo Bay detainees, I would suggest that we review, without completely abolishing, the process set up by the Detainee Treatment Act. Clearly, that system has been unacceptably slow and unfair. However, detainees are no more likely to be 'presumed innocent until proven guilty' in the Federal Courts than they are under the tribunals. Also, the Federal Courts will quickly become clogged up with the sudden addition of detainees' cases to their usual schedule. If we place limits on the power of the tribunals; guarantee detainees certain rights (including the right to a lawyer); and speed up the process - perhaps by prioritizing cases and creating more tribunals to hear cases - it could become a fair and more truly 'American' system - one that we need not be ashamed of.

At the founding of this nation, three men wrote papers in response to Article III of the proposed Constitution, which was to set up the judicial branch of government. 'Brutus' was an Anti-Federalist. He argued that the judicial branch was invested with far too much power under the proposed Constitution. Brutus was afraid of what the possible - and in his mind inevitable - abuses of judicial power could lead to. Brutus was also afraid that the Judiciary would interpret the constitution based upon "its spirit and reason and not... confine themselves to its letter"[5]. This was, in condensed form, the great fear of all Anti-Federalists.

Alexander Hamilton and James Madison, on the other hand, were Federalists who supported ratification of the Constitution. Hamilton wrote that United States' citizens would have nothing to fear from the Judicial Branch since, "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them."[6] Madison argued that the three branches would always be keeping each other in check, preventing any one from gaining power and influence sufficient to become dangerous to the people's rights and liberties.[7] 'Brutus' feared that that the Judicial Branch had the ability to grossly expand the powers of the legislative branch with its interpretations. Madison would have argued that it had no reason to do so and every reason not to.

In almost all ways, I am a Federalist. Time has shown the ability of our government to control both its own potential excesses and those of the people.[8] Our government, built on primarily Federalist ideals, continues to sport republican liberty today. However, Guantnamo Bay is 'un-American' and 'un-republican'. The Supreme Court ruling in Boumedienne v. Bush should have tried to solve this unjust situation. Instead, it claimed more power for its own branch and left the detainees to fend for themselves. I cannot help but feel that this individual decision best supports Brutus' fears: "... it will not be denied, that the constitution is the highest or supreme law. And the courts are vested with the supreme and uncontrollable power, to determine, in all cases that come before them, what the constitution means..."[9] And I cannot agree with the Court's apparent abuse of this power in Boumedienne v. Bush: "One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."[10]

The sentiments expressed in this paper are summed up in a piece of writing by Sami al-Haj, a Sudanese reporter imprisoned in Guantanamo Bay: "Will the World stand for a moment of silence one day beside that colossal wreck saying, 'There was once a stone statue here- a statue called Liberty'? ... The enormous statue cries out to the World, 'Liberty and Justice for All!' Yet despite the floodlights all around Lady Liberty, her voice becomes weaker, and the World begins to see that she is either deceiving or deceived. Else how could she allow these cells to be built in her very foundation? Sadly, the flame in her hand is sputtering in the storm. Will, first, the light go out on the world, and then the statue crumble?"[11]

[1] All these rights are listed under Amendment VI of the United States' Constitution: "...the accused shall enjoy the right to a speedy and public trial by an impartial jury... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

[2] Chief Justice Roberts. Dissenting opinion, Boumedienne v. Bush (2008)

[3] Chief Justice Roberts. Dissenting opinion, Boumedienne v. Bush (2008)

[4] Guaranteed in Amendment VI of the United States' Constitution: "the accused shall enjoy the right to a speedy and public trial, by an impartial jury".

[5] 'Brutus'. Brutus 12.

[6] Hamilton, Alexander. Federalist 78.

[7] Madison, James. Federalist 51.

[8] See James Madison's Federalist 10: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

[9] 'Brutus'. Brutus 12

[10] Chief Justice Roberts. Dissenting opinion, Boumedienne v. Bush (2008)

[11] Excerpt included in My Guantnamo Diary: The Detainees and the Stories They Told Me. Khan, Mahvish Rukhsana, p.180.

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