Legal Rights of Guantanamo Bay Detainees
Enemy Combatants, Habeas Corpus, and Due Process of Law
Much of the publicity surrounding the detention of suspected terrorists at the U.S. naval base in Guantanamo Bay, Cuba has focused on the question of whether the U.S. military uses torture as an interrogation technique. However, there are a number of other legal questions not related to the treatment of detainees, but instead concerning the question of whether the military has the authority to detain them at all, and if so, what rights they have to challenge their detention.
Who Can the U.S. Government Detain at Guantanamo Bay?
In the case Hamdi v. Rumsfeld, the Supreme Court held that the government has authority to detain enemy combatants for the duration of active hostilities in Afghanistan. Though Hamdi was a U.S. citizen, and the government was holding him on a navy brig, the same applies to the Guantanamo detainees. As long as a detainee is an enemy combatant, and as long as U.S. forces are actively fighting in Afghanistan, the government has the authority to detain that person.
An enemy combatant is someone under the command structure of the enemy during wartime. In this case, Congress authorized "necessary and appropriate force" against anyone involved with the 9/11 attacks in a piece of legislation known as the AUMF. Under this authorization, Al Qaeda and the Taliban are our enemies, and so those under their command and control are considered enemy combatants. Detention is in turn a part of "necessary and appropriate force" against the enemy. The Court has used a number of factors to determine who is an enemy combatant – included are those who are part of the military wing of the enemy, those under its control, those present on the "battlefield" during hostilities, and those who took up arms against the United States.
What Rights Do Detainees Have to Challenge Their Enemy Combatant Status?
Of course, not everyone held at Guantanamo Bay would agree that he is an enemy combatant. In Rasul v. Bush, the Supreme Court held that detainees have the right to petition for habeas corpus, which is a means of challenging one's detention. Though the detainees are not held in a U.S. federal district, and the federal habeas statute refers specifically to the territorial jurisdiction of the judge issuing the writ of habeas corpus, they can still petition for the writ because their custodian – ultimately the Secretary of Defense – is subject to the jurisdiction of a U.S. federal judge.
In 2005, Congress attempted to take away this right with the Detainee Treatment Act of 2005, which says that no court has jurisdiction over habeas applications filed by non-citizens detained at Guantanamo Bay. This statute created a procedure by which enemy combatant status is reviewed, but appeal of this review in a civilian court – the D.C. Court of Appeals – is limited to whether the military followed its own procedures and any applicable U.S. law. The Supreme Court found that this limitation did not apply to habeas petitions that were pending at the time the DTA was passed, however, in a case called Hamdan v. Rumsfeld.
Congress tried to fix this by passing the Military Commissions Act of 2006, again stripping jurisdiction of courts over habeas applications, but the Court again ruled that petitions were valid in Boumidiene v. Bush. The upshot of this case was that constitutionally, under Article I § 9, only Congress can suspend the writ of habeas corpus, and otherwise it is in effect. Congress can get around this without suspending the writ only if it offers procedures that are substantially equivalent to habeas, which was not the case with the Military Commissions Act. Its procedures offered a scope of review more limited than that available with a habeas petition, and it also did not allow review at all for a defined class of detainees – those tried by military commission whose sentences were less than ten years imprisonment.
Sources:
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Authorization for Use of Military Force, Public Law 107-40 [S. J. RES. 23] (September 18, 2001)
Rasul v. Bush, 542 U.S. 466 (2004)
Detainee Treatment Act of 2005 (H.R. 2863, Title X) (December 30, 2005)
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)
Boumidien v. Bush, 553 U.S. ___ (2008)
Military Commissions Act of 2006 (HR-6166) (October 17, 2006)
Norman Abrams, Anti-Terrorism and Criminal Enforcement (Abridged Third Edition), West 2008
Guantanamo bay detainees have certain legal rights
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