On Wednesday the U.S. Supreme Court will again peer into the hell hole with the beguilingly syncopated name: Guantánamo.
Lawyers representing Guantánamo prisoners will argue that the hundreds of alleged terrorists locked up there have the right to habeas corpus -- the right to challenge the legality of their imprisonment in court. Government lawyers will say no, they don't -- habeas corpus doesn't extend to aliens held outside the 50 states.
Twice before (once with volunteer lawyers from Seattle's Perkins Coie), the prisoners have won significant victories in the Supreme Court. But both times the court stopped short of deciding whether the men have the right to habeas corpus.
This time, the court should decide that they do.
In response to the two earlier decisions, the Bush administration and Congress created a new set of procedures to determine whether the government has correctly classified a Guantánamo prisoner as an "enemy combatant." Those procedures, though, give only the illusion of enabling a prisoner to prove that he should go free.
Consider the case of my client Fayad Yahya Ahmed, a citizen of Yemen.
In the novel scheme of legal procedures at Guantánamo, the key event is a hearing by a Combatant Status Review Tribunal, a panel of three military officers. When appearing before a CSRT, a prisoner is not entitled to have a lawyer's help, to see the evidence against him, or to call witnesses in his defense -- even if his witnesses are also at Guantánamo.
Fayad Ahmed's Tribunal accepted his classification as an enemy combatant after a hearing where the evidence was all of guilt by association: He traveled from Yemen to Pakistan to study religion. He lived there with other Yemenis. His living and study expenses were paid by a benefactor. He would study and pray in Pakistan with members of Jama 'at al-Tabligh.
According to the government, Jama 'at al-Tabligh is an Islamic missionary organization that provides cover for activities of terrorists, including members of al-Qaida. There was no showing at his CSRT that Fayad Ahmed belonged to Jama 'at al-Tabligh, that he supported it in any way, or that he knew it had any connection to terrorism. (You can read the transcript of his hearing via a link at his Wikipedia entry.)
Some prisoners have prevailed at their CSRTs. They were not found to be enemy combatants. But in many of those cases, military superiors ordered do-overs -- second CSRTs. For some of the prisoners who prevailed even at their second CSRTs, superiors ordered a third CSRT.
That is not justice the American way.
Where can I take Fayad Ahmed's request for a fair hearing? According to the special Guantánamo legal scheme, only to a federal court of appeals, where the question won't be "Is he a terrorist?" or "Does he intend violent action against the United States?" Instead, the question will be only whether the government followed its own improvised procedures in deciding that he is an enemy combatant.
To say that the right to habeas corpus is enshrined in the Constitution is to give it short shrift. It goes back 500 years further than that, to the Magna Carta.
But isn't there also a long legacy for denying prisoners of war a day in court? Yes. But that legacy cannot justify denying habeas corpus at Guantánamo for at least two reasons.
First, the undeclared global war on terrorism seems to be just getting going. It already has lasted longer than World War II. Like the Cold War, it could run half a century. That's a long time to ask POWs to await repatriation.
Second, the administration insists people it links to al-Qaida are not entitled to be treated as POWs. Hence the brutality -- both physical and psychological -- with which it has treated the prisoners at Guantánamo.
It frightened me to learn, when I was a boy, that the Soviet Union imprisoned people indefinitely -- even for life -- without trial. Now it saddens me to know that my own country is doing that. It is beneath us as a people -- whether we do it outside or inside the 50 states.
When we lose our heads as a nation, we count on the Supreme Court and the Constitution to remind us who we are, what we stand for, and how we have resolved to treat people -- even people we fear. It is time for the Supreme Court to remind us that habeas corpus is at the heart of those things.
David S. Marshall is a Seattle lawyer whose usual work is child abuse cases. He is one of hundreds of lawyers who represent Guantánamo prisoners without compensation. Their work is coordinated by the Center for Constitutional Rights.
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