On Thursday, June 12, 2008, the Supreme Court of the United States issued its long-awaited decision in Boumediene-Al Odah.
To the surprise of none, Justice Anthony Kennedy made the fifth vote for a 5-4 decision that habeas corpus applies to Guantánamo Bay and was unconstitutionally suspended by the Military Commissions Act 2006.
It was essentially the same result the court provided in 2004 in the Rasul (Hicks) case, and had George Bush not chosen to flout and frustrate the court’s decision in 2004, the petitioners in Boumediene would have already had habeas hearings years ago in Washington DC.
The court also found that the Detainee Treatment Act 2005, while not unconstitutional, did not provide a legal equivalent to habeas review.
Instead of remand to the Court of Appeals, the cases will go straight to DC District Court for action, with no need to exhaust other remedies such as the DTA.
Although the court did not enumerate which constitutional provisions would apply upon remand, it spoke throughout of due process.
The district court judge in the Boumediene case, Richard Leon, apparently thought due process did not attach to habeas, unlike Judge Joyce Hens Green, the district court judge who ruled for the petitioners in the companion Al-Odah (Hicks II) case.
In reaching its decision the Supreme Court distinguished the WWII era case on which the Bush administration has always relied:
“Nothing in Eisentrager [v Johnson] says that de jure sovereignty is or ever has been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus.”
As Justice Kennedy (pic) acknowledged…
“Before today the Court has never held that non-citizens detained by our government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.”
The Hamdan decision, by contrast, was based on a statutory habeas.
Nevertheless, it was enough in the Boumediene case that the “detainees are held in a territory that, while technically not part of the United States, is under the complete and total control” of the US government.
There were some barbed comments in Kennedy’s opinion. For instance, in response to the dictum of the Hamdan plurality that nothing prevented the president from returning to congress to seek new authority, he said:
“Nothing in that opinion can be construed as an invitation for congress to suspend the writ [of habeas corpus] ... To hold the political branches have the power to switch the Constitution on and off at will … would permit a striking anomaly in our tripartite system of government leading to a regime in which congress and the president, and not this court, say ‘what the law is’ – Marbury v Madison.”
* * *
A week before the Supreme Court decision in Boumediene, the Pentagon charged ahead with its 9/11 Conspiracy military commission for five men suspected of being behind the 2001 atrocity.
It was the first time the men had appeared in a court since they were imprisoned some five years ago.
Some of the lawyers had not met their clients, or only had a few hours with them, thanks to the failure to grant timely security clearances and the action of bringing forward their case even while one commission judge had granted a delay in order to await the Boumediene opinion (see my post of June 2).
The arraignment had a theatrical quality, well-expressed by one of the defendants, Ali Abdul Aziz Ali (Al Baluchi):
“Lawyers are decorative, they cannot talk on our behalf … the court already made [a] decision that is behind the desk. This is a stage play.”
As a show, 9/11 had plenty of advance publicity, such as the balanced endorsements of the production’s Legal Adviser, General Tom Hartmann, and the attorney general.
Other publicity, however, was not so beneficial: would Stalin’s advance men admit torturing players, before their trials were staged, or publish a torture menu beforehand?
Yet on June 4, the day before the 9/11 arraignment, the Pentagon posted on its FOI website Secretary Rumsfeld’s long-suppressed “2003 Working Group Report on Detainee Interrogations” that spelled out in gruesome detail the enhanced interrogation techniques (other than drowning) formerly approved for use on the defendants.
Also on June 4, DoJ’s Inspector-General Glenn Fine testified before congress about the actual torture of Mohammad Al-Qahtani, who – strange to say – had just been dropped from the Guantánamo 9/11 cast.
According to Tim Rutten (pic) of The Los Angeles Times, June 5 did produce theatre, though not what the Pentagon had in mind:
“By any reasonable standard, the Guantánamo tribunals are a farce. By the government’s own admission, Mohammed and other high-level Al Qaeda detainees have been tortured. The five men arraigned Thursday all face execution if convicted. Their military defense lawyers say they’ve been denied adequate access to their clients or time to prepare a reasonable defense. The pool reporters the Pentagon is allowing to cover the proceedings have to sit behind a glass partition and listen over a sound system with a 20-second delay. Ostensibly that’s to prevent the media from hearing any national security secret inadvertently blurted out during the testimony. Thursday, it apparently was used to shut off any mention of torture.”
Torture was indeed the motif running through the 9/11 arraignment.
Not surprisingly, the Armed Forces Press Service scrubbed all reference to torture, but it was well-reported by the ACLU, as well as Joanne Mariner and Andy Worthington.
Several defendants acknowledged they had been cautioned not to refer to “harsh interrogation”, and when a ghostly Khalid Sheikh Mohammad (pic) said, “I do not mention the torturing”, he seemed to echo the Ghost in Hamlet:
But that I am forbid
To tell the secrets of my prison house,
I could a tale unfold whose lightest word
Would harrow up thy soul, freeze thy young blood …
* * *
In light of the Boumediene decision, the intrepid troupe of actors making up Guantánamo Rep will probably have to (literally) fold their tents, despite the bluster from the Department of Justice claiming that the show would go on.
It was a four-year old ensemble where roles were freely interchanged.
For instance, Ralph Kohlmann, the Judge in 9/11, appeared as Judge in the 2007 production of David Hicks.
Peter Brownback, who played Judge in the 2004 staging of David Hicks, starred in the same role in Omar Khadr until he was sacked by a Chief Judge played by Kohlmann.
Moe Davis was particularly versatile, seamlessly moving from Chief Prosecutor roles to Witness for the Defence parts.
This ability of the cast to fill any role may be fitting, if, as law prof David Glazier argues (see my post of March 4), those now playing Prosecutor may one day be The Accused.