On Oct. 1 Duke Law students got a comprehensive briefing on those questions and cases from Jonathan Hafetz, director of the ACLU’s National Security Project and counsel in several leading detention cases. Professor Scott Silliman, executive director of Duke’s Center on Law, Ethics and National security moderated the lunchtime discussion which was co-sponsored by the Duke Law chapters of the American Constitution Society and the ACLU, and the National Security Law Society.
Among the questions left unresolved by the Boumediene ruling are these relating to the Constitution’s scope, said Hafetz: How far it extends, if at all, beyond Guantanamo; which constitutional protections apart from habeas are covered by the ruling; what a “meaningful opportunity to be heard” actually means; the definition of enemy combatant; and the scope of the war on terror.
Does Boumediene extend beyond Guantanamo?
In the Boumediene ruling the Court held, 5-4, that the habeas corpus “Suspension Clause” [in Article 1, Section 9] applies to Guantanamo detainees. “Do detainees at Bagram Air Base in Afghanistan also have a habeas right under the Suspension Clause?” Hafetz asked.
A number of challenges brought on behalf of Bagram prisoners were on hold pending the Boumediene decision, he noted. As they move forward the government will try to limit the Boumediene holding to the conditions at Guantanamo, while the prisoners’ counsel will argue that it becomes a “dead letter” if the writ doesn’t run wherever the U.S. is holding prisoners illegally. In fact, the administration has brought few prisoners to Guantanamo since the Supreme Court’s 2004 finding in Rasul v. Bush, that it was, for all intents and purposes, under the sovereign control of the United States, he said.
Still, the Bagram Air Base, which houses an estimated 700 prisoners who have no access to counsel, is closer to a theater of military operations, said Hafetz. “It looks and seems like it’s closer to what we traditionally think of as war, where courts have traditionally stayed their hand.”
What constitutes a meaningful hearing?
Having found a constitutional right to habeas corpus, the Boumediene ruling also addressed whether Congress had offered an “adequate and effective substitute,” in the Detainee Treatment Act (DTA), for a full federal court review of the findings of the Combatant Status Review Tribunals (CSRTs) at Guantanamo by allowing a limited review by the District Court for the District of Columbia. The Court found that it did not, and invalidated Section 7a of the Military Commissions Act (MCA) that stripped the federal courts of the power to review CSRT findings. The Court said the detainees have a right to prompt habeas corpus hearings in District Court.
“The CSRT could deny all things we associate with due process or a fair hearing: the right to see the evidence; the right to a lawyer; the right to a fair decision-maker,” said Hafetz. “In the DTA, the review was just too limited to compensate for those structural flaws in the CSRT. In particular, it did not allow the D.C. Circuit to consider new evidence, but was effectively limited to the CSRT record.”
Hafetz said that it remains to be determined what a habeas corpus hearing will entail for prisoners held outside of Guantanamo, and many important procedural issues will be determined by a host of cases currently in the District Court of the D.C. Circuit. “What rights do they have?” he asked. “Will they have access to classified information, including discovery; a right to exculpatory evidence from the government; a right to cross examine witnesses or to give testimony?”
Who is an “enemy combatant?”
The definition of enemy combatant was left open by the Court in Boumediene, Hafetz said. “Thus far, the Supreme Court has said only, in [Hamdi v. Rumsfeld] in 2004 that if an individual takes up arms on the battlefield in Afghanistan, he is an enemy combatant. But …whether you can be classified as an enemy combatant based on something that does not resemble a traditional combat activity is a bigger question that goes to the heart of the so-called war on terror.” The Boumediene petitioners were, in fact, Algerian nationals seized in Bosnia and transferred to Guantanamo and, thus, fell outside the Hamdi definition. Hafetz is representing a detainee in one such case in federal court, that of Ali Saleh Kahlah al-Marri, a citizen of Qatar who was arrested in Illinois and is the only individual designated as an enemy combatant on the U.S. mainland.
Peripheral issues flowing from Boumediene
Issues relating to the transfer of prisoners — whether lawyers and courts should get notice of transfers, and whether courts can enjoin transfers — are among those being litigated in light of Boumediene, said Hafetz. These have arisen regarding detainees who may face torture if they are returned to their home countries and also for those who have never had the opportunity to challenge their designations as enemy combatants.
“The issues being litigated now are whether the Supreme Court, in Boumediene, struck down all of Section 7 [the court-stripping provisions of the Military Commissions Act of 2006] or just the habeas provisions in Section 7a, or, if the habeas provision was all that was struck down, whether there is some provision of habeas corpus itself that remains and provides for or guarantees some form of transfer review,” he said.
Hafetz was counsel in Munaf v. Geren, a case decided by the Supreme Court on the same day as Boumediene, which involved the rights of prisoners held by the U.S. military in Iraq. The central issues, he explained, were whether the courts had jurisdiction to review the cases and bar their transfer to the Iraqi authority based on the fear of torture. While the Court ordered the challenge to be dismissed, the justices were unanimous in holding that there was review jurisdiction. “So the question as it pertains to Guantanamo, is whether Munaf stands for something broader about an inability of a court to second-guess, on habeas, the decision of the United States to transfer a detainee to another sovereign, or whether it’s limited to its particular facts,” said Hafetz.
A further array of litigation in the D.C. Circuit focuses on whether detainees can challenge the conditions of their confinement, such as prolonged isolation or being subject to coercive interrogation or torture, said Hafetz.
Litigation under the Detainee Treatment Act
While Boumediene was working its way up to the Supreme Court, a number of detainees’ lawyers filed petitions challenging their clients’ detentions under the Detainee Treatment Act, hedging their bets, Hafetz said, against an adverse ruling on habeas in Boumediene. In Bismullah v. Gates, he said, the D.C. Circuit has found a robust discovery obligation on the government under the DTA. “It’s not limited to just giving them what was presented to the CSRT, but they’ve got to provide all the information the government has, including exculpatory information, with some exceptions for classified information. That would mean that under the DTA, while not quite as full as habeas, there’s something of a real process, and not the rubber stamp the administration was arguing for.” The government is appealing that decision.
Finally, Hafetz discussed the military commission trial system, alleging “fundamental flaws” in a system that allows the government to continue to hold detainees even after they have fully served their sentences. He also outlined important legal issues in the cases that have yet to be tried, such as the constitutional protections might apply at Guantanamo apart from habeas corpus. These issues will be challenged in the military and civilian appellate review process provided in the MCA, he said. “But [after Boumediene] there will be federal judicial review, and those issues will be sorted out in the months and years to come,” said Hafetz.
“Understanding Boumediene” is available for viewing as a webcast. It was co-sponsored by the Duke Law chapters of the American Constitution Society, the ACLU, the Federalist Society, and the National Security Law Society.