Yesterday the Petitioners in the Al Odah case submitted their brief to the Supreme Court. At issue in the case is whether detainees at Guantanamo Bay have constitutionally protected rights to habeas corpus and due process. In February, the D.C. Circuit Court of Appeals held that the elimination of habeas corpus rights for Guantanamo detainees under the Military Commissions Act did not violate the Suspension Clause of the Constitution because that clause does not apply to aliens held outside of U.S. sovereign territory.

The Supreme Court originally refused to hear the case, but in a highly unusual move, it later reversed itself and granted cert. The case, which seems likely to produce a historically significant opinion one way or the other, is scheduled for oral argument in December.

I've read through the brief submitted on behalf of the detainees (full text here), and it's quite compelling. I don't think the D.C. Circuit's bright-line holding that the Suspension Clause doesn't apply to foreigners held outside of U.S. sovereign territory is likely to hold up. It flies in the face of the Supreme Court's Rasul decision and it's just too rigid a rule, particularly if you're going to define Guantanamo Bay--a place that has long been under U.S. control and subject to U.S. law--as being outside of U.S. sovereign territory (as the brief notes, even the iguanas at Guantanamo are protected by U.S. law). Plus, if the Supreme Court agreed with the D.C. Circuit on this technical point, I find it hard to understand why they would have reversed themselves and agreed to hear the case.

So if we assume that the Suspension Clause does apply to detainees at Guantanamo, the question then becomes: has Congress either validly suspended habeas or provided an "adequate and effective" substitute for it? Under the terms of the Suspension Clause, Congress is only allowed to suspend habeas corpus in cases of "rebellion and invasion"--which is pretty clearly not the case here. So the ultimate issue is whether the Combatant Status Review Tribunals established by the President and ratified by Congress are an adequate and effective substitute for habeas under the holding of Swain v. Pressley, 430 U.S. 372, 382 (1977) ("[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus.").

And this is where the Petitioners' brief is particularly compelling. The Combatant Status Review Tribunal (CSRT) process is supposed to afford detainees the opportunity to meaningfully challenge their designation as enemy combatants, which is the sole legal basis for their detention. The government contends that that CSRT hearings are an adequate and effective substitute for habeas corpus, but as the Petitioner's brief makes abundantly clear, they are anything but. Here's one example of how the process works:

Abdullah Al Kandari was designated an enemy combatant principally because, more than a year after he was brought to Guantanamo and more than a year after this suit was brought, an "alias" of his name was allegedly found on a list of names on a document saved on a computer hard drive allegedly "associated with a senior al Qaeda member." S.A. 1360. Mr. Al Kandari stated that he is not known by any alias, and asked what name appeared on the list. He was not allowed to know; the information was classified. J.A. 68. The name of the "senior al Qaeda member" was likewise classified, as was the place where the hard drive was found. Mr. Al Kandari was thus left to defend himself against the accusation that an unknown alias of his appeared on a list on a computer found somewhere in the world associated with someone. It is impossible to rebut such a charge, and Mr. Al Kandari said so: "The problem is the secret information, I can't defend myself." Id.

And how about the assistance of counsel?

Not only were the detainees not informed of the key accusations against them, they were also not allowed lawyers, something they would clearly be entitled to in habeas. And they were denied counsel even though each of the petitioners was already represented by counsel in these habeas cases when their CSRTs took place. Instead of a lawyer, the detainees were assigned a “personal representative” who was instructed to tell the detainee: “I am neither a lawyer nor your advocate, but have been given the responsibility of assisting your preparation for the hearing. None of the information you provide me shall be held in confidence and I may be obligated to divulge it at the hearing." . . .

Assistance of counsel was particularly important here because the detainees were isolated at Guantanamo with virtually no ability to communicate with the outside world. In these circumstances, assistance of counsel was essential to test the allegations and gather evidence to disprove them. For instance, one of the principal reasons for detaining Murat Kurnaz as an enemy combatant was that he was a friend of Selcuk Bilgin, who was “alleged to have been a suicide bomber.” App. 107. Detained at Guantanamo, without counsel or access to the outside world, Mr. Kurnaz could only express shock at that allegation. He did not know and could not find out that that his friend, Mr. Bilgin, far from being a suicide bomber, was alive and well and living peacefully and without criminal suspicion in their hometown of Bremen, Germany. That is something his counsel could have found out and proved in short order, had he been allowed counsel. Because he was not, the allegation that his friend was a suicide bomber was accepted by the CSRT as true, as it would be on review under the DTA, even though it was objectively false. Thus, even when the detainees were informed of the accusations against them, without the assistance of counsel, they were deprived of a meaningful opportunity to rebut the accusations and to develop and present the evidence needed to establish their innocence.

Victims of mistaken identity – a serious risk in this unconventional conflict, see Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (plurality opinion) – also were helpless without the assistance of counsel at their CSRT hearings. For example, one detainee was seized from his home by Pakistani officers, shipped to Guantanamo and accused at his CSRT of being Abdur Rahman Zahid, a former Taliban deputy foreign minister. The detainee protested that his name is Abdur Sayed Rahman, not Abdur Rahman Zahid, and that “I am only a chicken farmer in Pakistan.” Pleading the obvious, however, Mr. Rahman stated: “I have no proof because I am here at Guantanamo.” Id. Unfortunately for Mr. Rahman, his counsel would be precluded now by the narrow review provisions of the DTA from presenting evidence of his client’s true identity to the court; a preclusion unimaginable under habeas review.

And what sort of evidence can the government use?

As Judges Rogers and Green both pointed out, the CSRT procedures allow continued detentions to be justified on the basis of evidence resulting from torture--something that would clearly be prohibited in habeas proceedings and which the common law "has regarded . . . abhorrence for over 500 years." A. v. Sec'y of State [2006] 2 A.C. 221, 51 (H.L.) (appeal taken from Eng.) (Bingham, L.).

Judge Green described the case of Mamdouh Habib, who alleged that he had been sent by the United States to Egypt for interrogation where he was subjected to severe beatings, locked in handcuffs in a room that gradually filled with water to a level just below his chin as he stood for hours on the tips of his toes, and that he was suspended from a wall with his feet resting on an electrified cylindrical drum. Mr. Habib alleged that, while undergoing this treatment, he admitted to doing many things he had never done. App. 112-13. Without resolving the accuracy of Mr. Habib’s allegations, the CSRT relied on the statements that he made while in Egypt and concluded that he was an enemy combatant. App. 111-13.

Interrogation techniques officially approved for use at Guantanamo included isolation for up to thirty days; twenty-hour interrogations; extreme and prolonged stress positions; sleep deprivation; sensory assault; deprivation of clothing; hooding; and use of dogs. Judge Green, in her opinion, refers to a number of cases of alleged abuse there and quotes from a memorandum by an FBI agent, produced in response to a Freedom of Information Act request, summarizing his observations of interrogation methods used at Guantanamo:

On a couple of occassions [sic], I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food, or water. Most times they had urinated or defacated [sic] on themselves, and had been left there for 18-24 hours or more. On one occassion [sic], the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. When I asked the MP’s what was going on, I was told that interrogators from the day prior had ordered this treatment, and the detainee was not to be moved. On another occassion [sic], the A/C had been turned off, making the temperature in the unventilated room probably well over 100 degrees. The detainee was almost unconcious [sic] on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night. On another occassion [sic], not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor.

Although the new statutory rules require CSRTs to determine, to the extent practicable, whether statements were the result of coercion, they do not require that such evidence be disregarded.

This is justice Guantanamo style. This is the process that the government contends is the functional equivalent of habeus corpus. It's a joke. The question is whether the Supreme Court will have the courage to say so.

(original post here)