When the Supreme Court issues its ruling in Boumediene v. Bush later this month, more than the rights of the 300 remaining prisoners at Guantánamo Bay will be at stake. Hanging in the balance is the ability of the President to order anyone in the world to be detained indefinitely without access to the courts or to evidence to contest their detention. According to the administration, the President, as commander-in-chief, has virtually unlimited powers to do as he or she pleases during time of war, even a war as vague and open-ended as the “War on Terror.”
Twice before, the U.S. Supreme Court has ruled on the legality of the detentions at Guantánamo, and twice Congress rushed to the mend. What is before the court now is the constitutionality of the Military Commissions Act (MCA), passed just before the fall 2006 elections. The intent and effect of the MCA was to replace the entire system of Geneva Conventions protections for prisoners of U.S. military operations.
The MCA created kangaroo courts that deny access to counsel; deny the right to see and cross-examine witnesses, that permit evidence obtained by torture if the government deems it reliable, and worst of all, don’t provide for the release from detention even if you prove you are not an enemy combatant.
While the number of detainees at Guantánamo is down by about half from its inception, those released — like Murat Kurnaz, the German of Turkish descent who was held for five years — have mainly been freed because of diplomatic pressures from their governments. On May 13, the military dropped charges against detainee Mohammed al-Qahtani, probably due to the threat by his lawyers at Center for Constitutional Rights to reveal the tortures used against him, including beatings, sleep deprivation, threats to harm female relatives and administration of interrogation drugs. However, he is still being held at Guantánamo.
According to Jonathan Hafetz of the Brennan Center at NYU Law School, 90 percent of the detainees who have gone through the Combatant Status Review Tribunals (as the kangaroo courts are called, or CSRTs) have been found to be enemy combatants. A project at Seton Hall Law School that reviewed 393 transcripts of these hearings found that in 96 percent of the cases, the government produced no witnesses nor presented any documentary evidence to the detainee before the hearings, only summaries of the classified evidence. Requests by detainees for witnesses were rarely granted.
Interestingly, the Supreme Court first declined to hear the Boumediene case, but changed its vote apparently after an employee of the CSRTs, Lt. Col. Stephen Abraham, filed a declaration complaining of pressure from above and very slim, circumstantial evidence being used to justify detention of hundreds of prisoners. In reality, many men at Guantánamo got there by being offered up by local Afghan warlords in exchange for bounties being paid by U.S. forces for alleged Al Qaeda members.
As the Supreme Court moves toward its decision in Boumediene, it also faces the Bush administration’s long-running assertion of nearly unlimited powers under a far-right wet dream known as the unitary executive theory. Seeking “unity in purpose and energy in action,” administration ideologues have pushed the idea of the imperial presidency to its outer limits, claiming that the president as commander-in-chief has the constitutional right to imprison people without charges, spy on citizens without warrants, authorize torture, order assassinations and invade other countries without congressional approval. Four Supreme Court justices are strongly sympathetic to the unitary executive theory, including Justice Samuel Alito, who called it “gospel” in a 2000 speech.
Should it overturn the Military Commissions Act, the Supreme Court will strike a blow against this pernicious doctrine of presidential omnipotence while restoring the traditional separation of powers between the three branches of government. Our democracy and our humanity depend on it.
The People’s Lawyer is a project of the New York City chapter of the National Lawyers Guild (nlgnyc.org).