Guantanamo detentions undermine US constitution

By Khalid Hasan

WASHINGTON: The imprisonment and trial of US citizens as “enemy combatants” and the indefinite detention of non-US citizens at Guantanamo raises fundamental questions about the role of the courts in preserving civil liberties during times of national crisis, according to the American Civil Liberties Union (ACLU).

The cases also shine a spotlight on the role of international human rights law in US courts and on the obligation of the United States to support human rights principles at home as well as abroad, the civil rights watchdog said. In the first case, which will be argued on 20 April, the court will review a ruling that the federal courts are not entitled to hear a claim that the detainees at Guantánamo are being held in violation of the constitution and international law. The ACLU is part of a broad-based coalition that filed a friend-of-the-court brief calling on the Supreme Court to assure that the Guantánamo detainees have access to the courts to challenge the legality of their detention.

ACLU said, “More than 600 people from 44 countries are being held indefinitely by the United States at Guantánamo with no charges filed against them and no access to lawyers or to their families. Most have been held for 18 months or longer. The government has refused to treat them as prisoners of war, and has refused to say when (if ever) they will be returned home. As a result, they have languished in a legal limbo that international law does not contemplate and that American constitutional law does not permit. Indeed, the government has claimed that it can continue to hold even those detainees who may eventually be tried and acquitted by military commissions.”

The brief signed by the ACLU and others supports an appeal in two related lawsuits filed last year by relatives of 16 Guantánamo detainees who contend that their continued detention without any legal process violates the government’s constitutional and treaty obligations. Endorsing that position, the brief argues that the claim of the detainees can and must be heard by the federal courts to ensure that the United States government fulfills its basic obligations under the Due Process Clause and the Geneva Conventions.

Rather than rule on the merits, the US Court of Appeals for the District of Columbia held that the Guantánamo camps were part of the “sovereign territory of Cuba” and thus outside the jurisdiction of US laws. The prisoners were effectively declared non-persons with no law to protect them and with no court to hear their pleas.

The ACLU and others have also raised the concern that America’s treatment of the Guantánamo detainees may make it harder to protect the rights of American soldiers captured overseas. Current and former military officials as well as former US POWs have all filed briefs before the Supreme Court urging that the people indefinitely detained at Guantánamo be given due process of law. The government’s position in the Guantánamo case represents a dramatic departure from prior practice. Individuals captured by the American military have long been entitled to a review process under the military’s own regulations. Those regulations have been faithfully applied in prior conflicts, including the first Gulf War, when hundreds of individuals initially detained as enemy soldiers were later reclassified as refugees.

While the vast majority of Guantánamo detainees have received no process at all, the ACLU said, the government has recently announced its intention to try two detainees before a military commission, and has designated four others for possible military trial. However, rather than delivering justice, the military commissions create a separate and unequal justice system for the Guantánamo detainees. A recent ACLU report describes how this parallel system allows the government to investigate, jail, interrogate, try and punish the Guantánamo detainees without sufficient legal protections against wrongful conviction and potential execution. Earlier this month, one of the military lawyers assigned to defend one of the accused Guantánamo detainees filed the first direct challenge to the military commission procedures, saying that the system violates the Constitution, federal law and the nation’s obligations under the Geneva Conventions.

In the second set of arguments, which will be heard on April 28, the Justices will review the indefinite detention of US citizens as “enemy combatants” in the consolidated cases of Hamdi v. Rumsfeld (03-6696) and Rumsfeld v. Padilla (03-1027).

Yaser Hamdi is an American citizen who was captured by the Northern Alliance while allegedly fighting with the Taliban in Afghanistan. Jose Padilla, an American citizen and onetime Chicago gang member also known as Abdullah al-Muhajir, has been accused of but not charged with plotting to explode a radioactive bomb in the United States.

Home | National