As the Supreme Court prepares once more to consider whether the detainees at Guantánamo have habeas corpus rights –- a cornerstone of civilization and a principle established 800 years ago in England, giving prisoners the right to challenge the basis of their detention in court –- Andy Worthington looks at the key arguments in what Law.com has described as “perhaps the most important habeas corpus case in modern history.”

On December 5, the nine justices of the Supreme Court will hear arguments from the government, represented by a team led by US Solicitor General Paul D. Clement, and from lawyers for the detainees, whose cases –- Al Odah v. United States and Boumediene v. Bush –- will be put forward by Seth P. Waxman, a former US Solicitor General, who is now a partner in the law firm Wilmer Cutler Pickering Hale and Dorr. The detainees’ main briefs are backed up by more than two dozen amicus briefs looking at various aspects of the cases, which have been filed by a wide range of legal experts, including such veterans of the Guantánamo legislation as Michael Ratner of the Center for Constitutional Rights, and Tom Wilner of Shearman and Sterling.

At stake is whether or not Congress acted unconstitutionally in passing the Military Commissions Act of 2006 (MCA), which established Military Commissions to try “enemy combatants” held at Guantánamo, and also stripped the US courts of their right to hear habeas corpus petitions filed by the Guantánamo detainees.

The MCA was itself a response to two previous Supreme Court decisions: Rasul v. Bush, in June 2004, and Hamdan v. Rumsfeld, in June 2006. In Rasul, the justices ruled, by a majority of 6-3, that the Guantánamo prisoners had the right to challenge the legal limbo in which they were held, and demolished the administration’s long-cherished belief that Guantánamo –- which was specifically chosen as the venue for a “War on Terror” prison because it was presumed to be beyond the reach of the US courts –- did not count as US territory. “They are not nationals of countries at war with the United States,” the judges declared, “and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.”

In his majority opinion, Justice John Paul Stevens emphasized the importance of habeas corpus, citing a 1945 case in which it was described as “a writ antecedent to statute … throwing its roots deep into the genius of our common law,” and a 1953 case dealing specifically with the detention of aliens in US custody: “Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.”

In Hamdan v. Rumsfeld, which focused on the case of Salim Hamdan, a Yemeni who was one of Osama bin Laden’s drivers in Afghanistan, the justices of the Supreme Court delivered an equally damning verdict on the legitimacy of putting the detainees forward for trial by Military Commission. This system of show trials was dreamt up by Vice President Dick Cheney and his advisors, including David Addington, and established in a document known as Military Order No. 1, which was approved with no Congressional oversight whatsoever in November 2001. It authorized indefinite detention without due process for “enemy combatants,” and established ground rules for the Commissions that drew widespread criticism from lawyers and human rights activists, for several obvious reasons. These included the fact that the juries and presiding officers would be hand-picked by the administration, that evidence obtained through hearsay or torture would be allowed, and that both the accused and his lawyers could be prevented from seeing certain evidence.

By a majority of 5-3, the justices ruled that that the Military Commissions were illegal under US law and the Geneva Conventions. Concluding that Common Article 3 of the Geneva Conventions –- which forbids “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment” –- was “applicable” to Hamdan and others facing Military Commissions, Justice Stevens stated that it was Hamdan’s right to be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” By confirming the importance of Common Article 3, the Supreme Court struck at the heart of the administration’s novel and unprecedented flight from domestic and international law. Justice Anthony Kennedy spelled out this position even more clearly, warning the administration that “violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offences, when committed by … United States nationals and military personnel.”

In the case of Rasul v. Bush, the government responded by allowing the detainees to have access to lawyers, for the first time in over two and a half years of isolated detention, but ignored the main thrust of the verdict –- that they should have access to the US courts –- by establishing military reviews at Guantánamo, known as Combatant Status Review Tribunals (CSRTs), which were blatantly unlawful. Designed merely to review whether or not the detainees had been correctly designated as “enemy combatants” when they arrived in US custody – mostly between 2001 and 2003, and mostly delivered by the US military’s allies in Afghanistan and Pakistan at a time when bounty payments for al-Qaeda and Taliban suspects were prevalent – the CSRTs prevented the detainees from being represented by lawyers, and, like the Commissions, relied on classified evidence, which was not revealed to the detainees and which, moreover, was just as readily obtained through the torture, coercion and bribery of other detainees.

In response to Hamdan v. Rumsfeld, the government seized on a comment made by Justice Stephen Breyer –- “Nothing prevents the President from returning to Congress to seek the authority he believes necessary [to reestablish the Commissions]” –- by doing just that, pushing the MCA through a supine Congress just three months later, reestablishing the reviled Military Commissions and, for good measure, stripping the detainees of their habeas rights.

Although the MCA was challenged in April this year, when the justices of the Supreme Court chose to delay judgment on the cases, allowing time for a limited review of the detainees’ cases to proceed under the terms of the Detainee Treatment Act (another flawed piece of anti-terror legislation, passed in 2005), the road to Wednesday’s momentous Supreme Court hearing opened up just two months later, when, reversing itself for the first time in 60 years, the Supreme Court agreed to hear the detainees’ arguments once more. Commentators credited this extraordinary change of heart to the explosive revelations contained in an affidavit filed in Al-Odah v. United States by Lt. Col. Stephen Abraham, a military intelligence officer with 20 years’ experience, who was involved in compiling the “evidence” for the CSRTs.

In a comprehensive hatchet job, Lt. Col. Abraham described the tribunals as severely flawed, relying on intelligence “of a generalized nature –- often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status.” In addition, he insisted that the process was designed to rubber-stamp the detainees’ prior designation as “enemy combatants,” and this was confirmed when it became apparent that several detainees had been subjected to second or third CSRTs when the verdict in the first did not meet with the administration’s approval. Lt. Col. Abraham later revealed that two of his former colleagues had supported his statements, and in September another whistleblower, an Army major who had been a tribunal member on 49 of the 558 CSRTs, also spoke out, confirming Abraham’s complaints about both the gathering of intelligence and the reconvening of tribunals.

The revelations of Lt. Col. Abraham and his colleagues have returned the issue of the detainees’ indefinite detention to center stage, just as it was three and a half years ago in Rasul v. Bush. In his argument on Wednesday, Seth Waxman will explain that the MCA is unconstitutional, and will point out that rulings made by the Supreme Court back in the summer of 2004 are still applicable. His brief states that, in Rasul, “this court ruled that noncitizens detained by the United States military at Guantánamo Bay have access to the writ of habeas corpus, a conclusion informed by the Court’s analysis of the common law writ,” and that the government has offered “no persuasive rebuttal to the Court’s reading of history.” Waxman’s brief also refutes “the government’s reliance on cases declining to grant habeas relief” as they relate to “prisoners of war,” and he reiterates the point made by the Supreme Court in Rasul: “Petitioners maintain that they are not enemy soldiers subject to military detention. Unlike prisoners of war in traditional armed conflicts – where it is usually clear or undisputed that the prisoners are in fact detainable enemy soldiers – Petitioners are civilians from a friendly nation who were abducted by the government far from any theater of war and have never engaged in armed hostilities against the United States.”

Whilst it seems from this argument that the Supreme Court will have no choice but to reiterate its 2004 verdict, Joanne Mariner, Terrorism and Counterterrorism Director at Human Rights Watch, has pointed out that the justices are in fact being asked to decide “whether prisoners at Guantánamo enjoy a constitutional right of habeas corpus (in other words, whether the Rasul decision was grounded in the Constitution, or whether it had mere statutory grounds).” If they agree that habeas corpus is a constitutional right –- as the Constitution’s Framers clearly intended it to be, ruling that it can only be suspended in “cases of rebellion or invasion” –- Mariner notes that they may then assess not only whether Congress “meant to suspend the right,” but whether, indeed, the nation’s politicians actually “had the power to do so.” Mariner also observes that the justices may rule on whether Congress, in allowing for limited federal court review of the CSRTs (in the Detainee Treatment Act), has provided the detainees with an “adequate substitute” for the right of habeas corpus, which, as she adds, is where “kangaroo courts” –- the tribunals, as demolished by Lt. Col. Abraham –- “come into the picture.”

Although no decision is expected before spring 2008, tomorrow’s hearing is indeed of colossal importance, not only to the detainees in Guantánamo, many of whom are about to start their seventh year of imprisonment without charge or trial, but also to the government’s assertion that it is entitled to pursue these policies without any significant judicial oversight. As Britain’s Financial Times noted in a recent editorial, “American democracy is based on the optimistic notion that all three branches of government will not do the wrong thing, all at the same time. The president and even Congress might step over the line –- but if they do, the US Supreme Court is there to restore the rule of law over the mistakes of men.”

Although the Bush administration has attempted to shift the Supreme Court to the right –- and to its own point of view –- in its two most recent appointments, the justices have repeatedly shown, as Suzanna Sherry, a professor at Vanderbilt University Law School, explained, that their job is “to balance the need to prevent terrorism with individual rights.” They are also clearly aware of their own right not to be shunted aside by an executive that demands the freedom to operate without any restraint whatsoever. Dennis Hutchinson, a professor at the University of Chicago Law School, summed up this attitude in a single line that those campaigning for the detainees’ rights must be hoping is particularly applicable: “The Court doesn’t like to be told, ‘You don’t have a role to play here.’”

This article draws on passages in my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed.

As published on CounterPunch and the Huffington Post.

See the following for a sequence of articles dealing with the crucial testimony of Lt. Col. Stephen Abraham and other Guantánamo whistleblowers: Guantánamo whistleblowers: Lt. Col. Stephen Abraham is not the first insider to condemn the kangaroo courts (July 2007), The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo: more whistleblowers condemn the tribunals (August 2007), A New Guantánamo Whistleblower Steps Forward to Criticize the Tribunal Process (October 2007), Guantánamo whistleblower launches new attack on rigged tribunals (November 2007), Guantánamo and the Supreme Court: What Happened? (December 2007), Guantánamo whistleblower Stephen Abraham addresses European Parliament (March 2008), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part One) (December 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part Two) (December 2008), Guantánamo: Lies, Damned Lies and Statistics (February 2009).

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).