Hamdan case tests indefinite detentions

Since Hurricane Katrina smashed into the Mississippi Gulf Coast last August, the US government has come under scathing criticism for being slow to respond. But the administration of President George W. Bush has recently showed it is more than capable of hustling on issues it considers top priorities. Less than a month after the Senate voted to ban appeals to the Supreme Court by suspected terrorists detained by the US, the Justice Department asked the high court to dismiss an appeal already pending from a prisoner at Guantánamo Bay, Cuba. The appeal was made in April 2004 by Salim Ahmed Hamdan. Hamdan was captured in Afghanistan in late 2001, during a time of hostilities in that country that followed the Sept. 11, 2001 terrorist attacks in the United States. He was detained by US military forces and transferred to Guantánamo Bay, Cuba sometime in 2002. In July 2003, Bush found "that there is reason to believe that [Hamdan] was a member of al-Qaida or was otherwise involved in terrorism directed against the United States," and designated him an enemy combatant to be tried by military commission. In April 2004, Hamdan's counsel filed a habeas corpus petition, which is now pending. In July 2004, Hamdan was formally charged with conspiracy to attack civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent, and terrorism. But on the basis of a Supreme Court ruling in June 2004, in a case involving another Guantánamo detainee, which determined that federal district courts have jurisdiction to hear habeas petitions filed by Guantánamo Bay detainees, Hamdan's military lawyers asked the court to consider the legality of his detention. His defense alleges he was denied a speedy trial, challenges the nature and length of his pretrial detention as a violation of the Geneva Convention, and the legality of Military Commissions as a violation of the separation of powers doctrine and of the equal protection guarantees of the Fifth Amendment. But in its recent motion, the government argued that when Congress passed the Graham/Levin/Kyl amendment at the end of 2005–The Detainee Treatment Act of 2005–it stripped the court of jurisdiction to hear Hamdan's case–as well as all other pending Guantánamo appeals. The "court-stripping" measure was a last minute amendment to the "must pass" Military Authorization Bill. The amendment was introduced by Senators Lindsay Graham (R-SC), John Kyl (R-AZ) and Carl Levin (D-MI). "The government's motion seeking to deny the Supreme Court the power to review a habeas case it has already taken up to review is one of the most serious challenges to Supreme Court authority since the Civil War," says Deborah Pearlstein, director of the US Law and Security Program of Human Rights First, a legal advocacy group. "The Constitution itself gives the high court the power to hear challenges to the legality of executive detention through the writ of habeas corpus, and neither the president nor Congress can take that away," the organization asserts. Another major advocacy group, the Center for Constitutional Rights, notes that "the first task this administration has chosen to undertake in the New Year is the dismissal of all pending Guantánamo habeas corpus petitions. If the government's position is adopted, no longer will victims of torture be allowed to sue, or to even air the fact of their abuse in any court," the center said. It adds that most Guantánamo detainees "have no ties to al-Qaida, many were turned over to the US for bounty, and even more were just in the wrong place at the wrong time. If they have no way to appeal their innocence or their status, they will be left to rot in detention indefinitely." Brian J. Foley, a professor at Florida Coastal School of Law, charges that Congress "was foolish to pass this law, because these enormous presidential powers can so easily be turned against US citizens. What if a US citizen is rounded up and never given a hearing to test whether he's an enemy combatant–or even a US citizen? Well, he can't access the courts, thanks to this statute." Foley said that the new law makes it clear that Congress "doesn't want to give these prisoners a way to complain about conditions of confinement, including torture. It doesn't want to give them a way to complain that they are not being given a hearing, or that getting a decision in a hearing is taking too long." "That's the upshot of this law, which gives prisoners a right only to appeal actual determinations of Combatant Status Review Tribunals, which decide whether the prisoner is an 'enemy combatant' in the first place, or the determinations of military tribunals, which are convened if an enemy combatant is tried for a particular crime, if the sentence is for death or for more than 10 years. Appeals of lesser sentences are at the DC Circuit's discretion," he said, adding, "There is no other way that the prisoner has a right to go to court, any court." "The only hope is that the Constitution's right to habeas corpus transcends this statute. That will ultimately be a major issue in the Supreme Court, and we can only hope that the justices don't simply side with the administration," Foley said.