TCS Daily

Tipping the Balance In Favor of Terrorists

By Michael Rosen - February 8, 2005 12:00 AM

Should foreign terrorists captured abroad, who are neither American citizens nor resident aliens but who are detained at the U.S. naval base at Guantanamo Bay, Cuba, be entitled to the suite of constitutional rights available to criminal defendants in U.S. courts? A judge on the federal district court for the District of Columbia thought so in an opinion issued last Monday.

Judge Joyce Hens Green found that Guantanamo detainees possessed a right to due process of law under the Fifth Amendment. Judge Green also struck down as unconstitutional the Combatant Status Review Tribunals (CSRTs) established by the Department of Defense last summer in response to two major Supreme Court rulings, Rasul v. Bush and Hamdi v. Rumsfeld.

Both moves are deeply problematic and, unless they are overruled in the ensuing appeal, threaten to hobble American efforts in the War on Terror by endowing our enemies with undeserved rights.

The story begins with Rasul where the Supreme Court, over the objections of the Bush administration, held that federal courts had jurisdiction to hear motions -- known as habeas corpus petitions -- brought by non-citizen captives at Guantanamo. The court ruled that detainees possessed some measure of rights under the habeas statute, which provides the possibility of a hearing for anyone -- citizen or not -- held by American authorities.

Then in Hamdi, the Court entertained the habeas petition of Yaser Esam Hamdi, an American citizen captured in Afghanistan while fighting for Al Qaeda. Hamdi's lawyers argued that he was being deprived of his due process rights, including access to incriminating evidence, advice of counsel, and a speedy trial. The government argued that enemy combatants deserve none of these rights. The Court struck a pragmatic middle ground, ruling that Hamdi, as an American citizen, enjoyed a limited number of due process protections which included the right to a hearing before a neutral arbiter -- including a military tribunal -- to assess the facts underlying his status as an enemy combatant and to determine whether that label is warranted.

Immediately after these rulings were handed down, Deputy Secretary of Defense Paul Wolfowitz initiated the CSRTs. The tribunals' participants must demonstrate their neutrality by certifying their total lack of involvement in apprehending, detaining, or interrogating the individual appearing before them. All detainees receive a personal representative to assist them in preparing their case. The "recorder" who presents evidence favoring an "enemy combatant" determination must provide an unclassified summary of that information and must also search for exculpatory evidence. Finally, the tribunals' decisions are reviewed by a higher authority. In short, the CSRTs furnish captives of the War on Terror with a scaled-down but fairly comprehensive bundle of due process rights.

Some of the first cases involving these CSRTs came before Judge Green in an unusual, although not unheard-of, consolidation of eleven related detainee cases. Judge Green first ruled that Guantanamo had the same status as any U.S. territory (such as pre-annexation Puerto Rico or Micronesia) and that the detainees enjoyed the same rights as residents of such a territory.

While the judge -- who was appointed by President Carter and for many years oversaw the Foreign Intelligence Surveillance Court -- based this status on Rasul and other sources, this precise issue has never been squarely addressed by the Supreme Court. The 5-4 majority in Rasul appeared to find only that federal courts had jurisdiction to hear habeas petitions, not necessarily that the mere presence at Guantanamo of petitioners who are not American citizens bestows constitutional rights upon them.

The ruling's ambiguity likely reflects give-and-take among the justices in order to arrive at its narrow majority; indeed, in a concurring opinion, Justice Kennedy provided a much more forceful endorsement of Judge Green's position, calling Guantanamo "in every practical respect a United States territory."

Others strongly disagree, pointing instead to our lease from Cuba of the land on which Guantanamo sits, an agreement that grants the U.S. substantial freedom to operate but preserves Cuba's ultimate sovereignty. Furthermore, the Hamdi court explicitly awarded some due process rights to Hamdi because he was an American citizen, not because he was detained at Guantanamo; if the court believed that the base was sufficiently sovereign territory for constitutional rights to attach, it would have granted the Rasul petitioners the same relief it awarded to Hamdi.

From a geopolitical and historic standpoint as well, Judge Green's decision is flawed. Guantanamo is a naval base populated by soldiers, support civilians, and inmates. The base and its inhabitants could hardly be more different from Puerto Rico or Micronesia -- territories where people live freely -- and their residents. Furthermore, awarding full due process rights to detainees will effectively compel the military either to relocate the inmates to bases abroad or to outsource interrogation to foreign intelligence officers. In either case, the U.S. will obtain less useful information at greater cost while the detainees will enjoy virtually no rights whatsoever.

But what are the rights in dispute? Here the second major ruling in Judge Green's decision becomes relevant. She found the CSRTs gravely deficient in protecting the rights of the detainees.

First, the tribunals denied the captives access to classified incriminating evidence, thereby also foreclosing their Sixth Amendment right to confront the evidence arrayed against them. Second, the personal representatives assigned to the detainees are not necessarily attorneys, nor are their communications with their "clients" confidential. Third, Judge Green concluded that the military was employing too broad a definition of "enemy combatant," one that included -- but was not necessarily limited to -- individuals committing belligerent acts or directly aiding enemy forces.

(For good measure, the court also found that it was possible that some of the evidence used against them derived from torture or otherwise abusive interrogation and that the Geneva Convention offers some protection to the Taliban -- but not the Al Qaeda -- fighters among them. Both of these issues have been addressed elsewhere and will not be rehearsed here).

While these concerns are serious, they are not so dramatic as the court made them out to be. First, that classification of evidence serves a critical function cannot have been lost on Judge Green, the publicly available version of whose opinion is at times heavily redacted to excise sensitive information. In addition, the Supreme Court in Hamdi recognized the need to mold evidentiary obligations to fit the exigencies of national security courts by signaling its willingness to accept a scheme that shifts the burden of proof from the government to the detainee.

Second, with regard to the personal representatives, it would certainly be useful to have the Pentagon provide the detainees with counselors trained in the law, although flying JAG lawyers down to Gitmo on a regular basis would strain an already tight budget. And it's quite possible that military-appointed representatives are more able advocates than some of the third-tier public defenders occasionally assigned to indigent defendants in the U.S. Also, the absence of confidentiality reflects the classified nature of the proceedings.

Third, the Pentagon's use of "includes" in its definition of enemy combatants does not necessarily mean that it encompasses anything other than what it purports to include. The definition leaves open the possibility of including other categories, as well it should: individuals who provide material support might not fit the category of "directly support[ing] hostilities in aid of enemy forces" but they might nevertheless warrant enemy combatant status if their behavior is sufficiently egregious.

To be sure, there can be little question that even the terrorist detainees, whether American citizens or not, deserve some form of due process. It would be the height of folly to equip the military with unfettered authority to detain anyone anywhere in the world for any length of time for any reason. Conversely, it makes legal, moral, and political sense to offer even the most odious detainees a means of challenging their status before a neutral decisor. But Judge Green's findings, while a thoughtful attempt by an accomplished jurist to unpack a complicated and sensitive issue, are a bridge too far. They tip the balance significantly in favor of the terrorists.

Much remains to be decided in this area. For one thing, the redacted portions of the opinion might contain information that justifies Judge Green's findings

For another, Judge Richard Leon, a Bush appointee and a fellow judge on the D.C. district court bench, issued an opinion a few weeks ago in a very similar case but reached a diametrically opposite result, dismissing the habeas petitions of seven Guantanamo detainees. This inconsistency in decisions within the district, coupled with their urgent national security importance, earned both cases an expedited trip to the Court of Appeals for the D.C. Circuit, from which they will almost certainly be appealed to the Supreme Court.

These appeals warrant careful attention from policy-makers and citizens alike, as their outcomes will frame -- hopefully for better, but possibly for worse -- our achievements in fighting the war on terror.

Michael M. Rosen, a TCS contributor, is an attorney in San Diego.



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