Wednesday, August 21, 2013

Guantanamo: The Question of Habeas Corpus

The Bush Administration chose Guantanamo Bay as the place to imprison prisoners captured in the War on Terror because it believed that the prison was outside the jurisdiction of US courts. On January 11, 2002 the first prisoners arrived at Guantanamo Bay. Some of the prisoners who were sent to Guantanamo were captured by Afghans and Pakistanis in exchange for a 5,000 dollar reward offered by the US government for al-Qaeda and Taliban suspects. This meant that many completely innocent people came to be imprisoned at Guantanamo.

The US government leased the Guantanamo Bay Naval Base from the newly independent country of Cuba in 1903, after the Spanish-American War. The agreement says that Cuba maintains “ultimate sovereignty” but that the US has “jurisdiction and control” over the area. In 1934 Cuba and the United States signed a treaty saying that the lease would remain in effect as long as, “the United States of America shall not abandon the… naval station at Guantanamo.”

The Cuban government was overthrown by the communist Cuban Revolution in 1959. One party to the treaty ceased to exist. The new Cuban government asked that the land be returned to Cuba. That is an ongoing request. The bottom line is that the US has the bigger military and is keeping the base.

The Bush Administration argued that because the prisoners were held in a place that the 1903 lease says the US does not have sovereignty over, the prisoners were not entitled to habeas corpus rights. Habeas Corpus is the right of an individual to challenge the legality of their imprisonment. The Guantanamo prisoners were denied the right to a lawyer, the right to a trial, and the right to know the charges against them (if there were any charges against them at all).

In 2004 the Supreme Court ruled in Rasul v Bush that, “the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be totally innocent of wrongdoing.” The Court’s opinion was written by Justice Paul Stevens and referenced the 1215 Magna Carta. The Court ruled that the prisoners had a right to Habeas Corpus under statutory law.

In response to this ruling, Congress changed the law to remove the prisoners’ right to Habeas Corpus. In 2006 Congress passed the Military Commissions Act which said, “No court justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” President Bush signed the legislation. In 2008 the Supreme Court ruled in Boumediene v Bush that the prisoners at Guantanamo had a constitutional right to Habeas Corpus.

Since July 2010 the DC Appeals Court made a series of rulings that required federal judges hearing Guantanamo cases to grant a special presumption of accuracy to US intelligence reports being used to justify the continued detention of Guantanamo prisoners. In June 2012 the Supreme Court declined to consider several appeals by prisoners at Guantanamo who argued they were not being granted a “meaningful opportunity” to challenge the legality of their imprisonment. The Supreme Court’s decision to not hear these cases rendered its earlier rulings that the prisoners had the right to Habeas Corpus all but meaningless.



Virtually Unrelated Tangent: The Magna Carta says that, “No freeman shall be…imprisoned…except by the lawful judgment of his peers or by the law of the land.” Originally “freeman” meant barons, church officials, and merchants, who were only about 25 percent of the population. However, the provision eventually came to apply to all English. The phrase “lawful judgment of his peers” did not refer to a jury trial; it instead referred to a trial by combat, a duel.


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