The press coverage of the administration's post-Hamdan bill has been okay, all things considered. (Among other things, some daily newspaper reporters are finally figuring out that they should ask human rights groups and military lawyers and read Balkinization for good analysis of these issues, instead of doing a he-said-she-said with Congressional Democrats and Republicans.) But the articles have centered on the proposed rules for military commissions and, to a lesser extent, on the amendment to the War Crimes Act. They haven't said much at all about what the bill would do to habeas corpus and judicial review.
It's bad--really bad.
Like the Detainee Treatment Act (which hilzoy and I wrote a long series on last November), the administration's bill strips the federal courts of jurisdiction of habeas corpus cases filed at Guantanamo. Unlike the Detainee Treatment Act, it clearly applies to pending cases. Unlike the DTA, which only applied to Guantanamo, this bill's jurisdiction-stripping provisions apply to "any alien detained by the United States as an unlawful enemy combatant". Unlike the DTA, this bill specifically provides that "No person in any habeas action or any other action may invoke the Geneva Conventions or any protocols thereto as a source of rights, whether directly or indirectly, for any purpose in any court of the United States or its States or territories."
I don't want to minimize the importance of the rules on military commissions. When the head staff judge advocate in the Marine Corps goes before Congress to testify that the President's proposal is unlike any "system of jurisprudence that is recognized by civilized people" because "an individual can be tried and convicted without seeing the evidence against him"--I take that very seriously.
But the crucial thing to realize about the military commissions is this: most prisoners in Guantanamo will never, ever see one. Ten have been charged so far. Maybe a few more dozen will be charged eventually. That's all. An overwhelming majority of the prisoners at the base will never be tried by a military commission.
The only process that most prisoners get are hearings called "Combatant Status Review Tribunals" ("CSRTs") and "Annual Review Boards" ("ARBs). The purpose of the CSRT is to determine whether a prisoner is an enemy combatant. The purpose of the ARB is to determine whether a prisoner already designated as an enemy combatant is still a threat to the United States. But in practice, they work about the same way.
The CSRTs and ARBs make the military commissions that the JAGs denounced before Congress the other day look like--I'm having a hard time coming up with an analogy. Let's just say, like shining beacons of due process.
In a military commission, evidence obtained under torture is excluded (though evidence obtained through "coercion" is allowed, and of course it depends on the definition of "torture", and in practice it may be difficult to prove you were tortured.) In a CSRT, evidence obtained under torture is not excluded. In practice, it has been admitted and used to demonstrate that several prisoners were enemy combatants.
In a military commission, the defendant has a right to counsel of his choice, military or civilian. In a CSRT, there is no right to a lawyer. Civilian lawyers in prisoners' habeas cases are not allowed to attend their clients' CSRTs and ARBs. Prisoners do get a military officer assigned as their "personal representative", but they have no legal training and their conversations with a prisoner are not confidential.
In a military commission, the government has the burden of proving guilt beyond a reasonable doubt. In a CSRT, the prisoner has the burden of proving innocence. The tribunal is required to assume that the evidence presented by the government is accurate.
Almost all of the evidence against a prisoner is classified. He is read only a vague summary of the charges. Actually, at the time of the hearing, the CSRT panel also has not seen the evidence against the prisoner--only a vague list of charges like "associating with a known al Qaeda member"--so they can't even ask useful questions without revealing their sources of information.
The prisoner can only call such witnesses as are "reasonably available". In practice this usually means fellow Guantanamo detainees, whose testimony is unlikely to be given much weight. He can only submit such documents as are "reasonably available." Documents have been found not to be reasonably available in cases where they were published on the internet. A prisoner cannot confront or cross examine any of the witnesses against him--again, he cannot even see what they have said. And he doesn't have a lawyer to look at any of this classified evidence for him.
On top of all this, the definition of "enemy combatant" is ridiculously broad.
Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists? asked U.S. District Judge Joyce Hens Green.
“She could,” replied Deputy Associate Attorney General Brian Boyle. “Someone’s intention is clearly not a factor that would disable detention.”...
Green asked if a hypothetical resident of England who teaches English to the son of an al-Qaida leader could be detained. Boyle said he could because “al-Qaida could be trying to learn English to stage attacks there,” and he compared that aid to “those shipping bullets to the front.”
If hypotheticals are not convincing, here is a description of one early CSRT:
The detainee was advised of his rights to testify or present evidence if he chooses and of his right to decline these things. Then he was told of the evidence collected against him.
"(Name omitted) served with the Taliban, trained on the Kalashnikov rifle, and surrendered to General Dostrum's forces in Afghanistan. At that time he was carrying a Kalashnikov rifle," the Air Force colonel said.
The recorder then said there was no further unclassified evidence to submit and requested a closed hearing to present classified evidence. He also explained the detainee had requested three witnesses be brought forward to testify that he was forcibly taken from his family and forced to join the Taliban.
Due to the "limited scope" of the tribunal proceeding, the board president explained, how or why the individual joined the Taliban is not a consideration. "The request for witnesses is denied," he said.
Next the detainee was given a chance to make a statement on his own behalf. He chose to make his statement under oath. He was unable to raise his right hand because of the chains, but swore to Allah to tell the truth.
"They came to my house and took me by force. I joined the Taliban by force, not by my own choice," he said, through the interpreter. "Everybody in Afghanistan knows that if the government asks you, you can't say no."...
Through questions asked by the personal representative, the tribunal panel learned the man had no ammunition when he was captured and had been held under guard the whole time he was with the Taliban forces.
Further questioning by the panel members revealed that he underwent four days of military training, that he never actually fought for the Taliban, and was never assigned any military duties in the month he was held by Taliban forces at a compound in Konduz. The tribunal members also learned the man was married and had six children....
The officials explained the detainee's request for witnesses was denied because what they would have testified on -- that he was compelled by force to join the Taliban -- would not be germane to the proceedings. The definition of enemy combatant "does not address consent or intent," an official explained.
That description is not from a member of the "liberal media," by the way; it's from the Armed Forces Press Service, posted on the Department of Defense website. Here are a few additional sources on CSRTs and/or the prisoners they found to be enemy combatants: 1, 2, 3, 4, 5.
Here's one last fact about the CSRTs though: as bad as they are, they are an improvement on what came before. The CSRTs were first held in 2004, as part of the administration's response to the Supreme Court ruling in Rasul v. Bush that it had jurisdiction to hear a habeas corpus petition from Guantanamo prisoners. Before that, there were no hearings. And some prisoners--two dozen, maybe--somehow beat the odds and convinced their CSRTs they were "no longer enemy combatants" ("NLECs") Some of them remained in Guantanamo for years after that, but as a result of the court cases and the bad publicity of keeping admittedly innocent people in prison, most of them have been released. As far as I know there are now just three acknowledged "NLECs" left in Camp Iguana.
The prisoner most recently released from Camp Iguana is a Saudi of Uighur descent named Saddiq Ahmad Turkistani. On September 11, 2001, Turkistani was being held as a prisoner of the Taliban in Kandahar. He had been arrested in 1998 in Khowst by members of Al Qaeda, accused of being a Saudi spy sent to assassinate bin Laden, and tortured him until he made a false confession. There are wire stories from 1998 in which Bin Laden thanks Allah for the failure of the Saudis and "Saddiq Ahmad's" assassination plot.
Without habeas corpus, I am convinced that he, and the six Uighurs transferred to Albania several months ago, would still be in Guantanamo. So would a number of other innocent detainees who have been released from the prison. We probably would not even know who they were, in most cases--not the ones from non-Western countries whose families did not have access to the media. We would know little if anything about the allegations of abusive interrogations at Guantanamo. We would know much less about the CIA's "black sites" and rendition program, as so many of those cases have become public because of Guantanamo lawyers' interviews with their clients.
Without habeas, Hamdan would never have happened. The Supreme Court would not have ruled that Common Article 3 applied to the conflict with Al Qaeda or that the military commissions were illegal. If you can't get into the courthouse door, the laws on torture and detention and military commissions will mean what the Office of Legal Counsel says they mean. Federal judges will have no say in the matter (at least, not in the absence of criminal prosecutions that we all know aren't happening anytime soon.)
I said most of this last November, I know. Well, it's worth repeating. Losing habeas, preventing any judicial enforcement of Geneva--it would be a big, big deal. I think it's as big a deal as the changes in the war crimes statute. You'd have to litigate Rasul all over again, under a much less favorable statute. At best, it would take years. At worst, you'd lose.
And habeas-stripping is a very real possibility. The Democrats' current strategy on these issues seems to be to hide behind Graham, Warner and McCain, and support their bill over the administration's no matter what it says. Right now it doesn't say anything about habeas, which I take as a mildly hopeful sign, but that could easily change. Graham was the leading supporter of habeas-stripping last fall, and McCain and Warner both voted for it. I wouldn't count on them to mount the opposition to jurisdiction stripping, nor would I count on the Democrats.
So, I guess that leaves us. As hil and I repeated over and over last fall (I will repeat it a few more times this month, but I don't have time for an all-out blog-a-thon): if you oppose this, please call your Senators, and make sure to specifically mention the habeas issue. And call your House Rep, too. And consider writing a weblog post on it. And keep doing all those things. The press just does not seem aware of this issue right now, and the people who would generally make them aware are also dealing with the 20 other things wrong with this bill.