You Have My Body
The Guantanamo detainees try to fight their way into court.
Saber Lahmar is an Algerian who was living in Sarajevo in 2001. In October of that year, Bosnian police arrested him, reportedly because the United States said that he and five other men were planning to bomb the British and American embassies in Bosnia-Herzegovina. After a three-month investigation, on Jan. 17, 2002, the Bosnian Supreme Court ordered all six men to be released. But before dawn the next morning, U.S. forces seized them all and flew them to Guantanamo Bay.
Fast-forward to June 2004 and Hamdi v. Rumsfeld and Rasul v. Bush, the Supreme Court's rulings that the Guantanamo detainees can't be detained forever merely on the president's say-so. The court found that the detainees have the right to "a meaningful opportunity to offer evidence" that they are not enemy combatants. In response, the Bush administration established "combatant status review tribunals"—panels of three military officers who would review whether a detainee is, in fact, the bad guy the government says he is.
When Lahmar appeared before his CSRT, he asked for the Bosnian court records, as evidence that he'd been found not guilty. The CSRT took a recess and asked the State Department to find the court record. The State Department said the Bosnian government didn't have it. Lahmar had no right to a lawyer before the CSRT. So it didn't matter that two months earlier, the lawyer who was trying to get Lahmar's case heard in federal court had filed the Bosnian court record in D.C. district court. The document was also online, the lawyer says. But the CSRT found that it wasn't "reasonably available." And then it agreed with the government that Lahmar was an enemy combatant.
In court arguments today before a panel of three judges of the D.C. Circuit Court of Appeals, government lawyers had this response to Lahmar's story: Tough luck, sucker.
The law that's before the court is the Detainee Treatment Act, which Congress passed last December. Here's the sequence: In Rasul, the Supreme Court ruled that the Guantanamo detainees could challenge their detentions in federal court by bringing petitions via the writ of habeas corpus. Traditionally, detainees have been able to bring habeas petitions if they are held without trial—a good fit for the Guantanamo detainees. So good, in fact, that when the cases of Lahmar and the others were first argued before the D.C. Circuit in September, things went badly for the government.
No matter—Congress to the rescue. The DTA cut off the habeas corpus claims of some Guantanamo detainees. The first question before the court today is which ones. The detainees argue that Congress didn't clearly state that the DTA applies to them, or to the hundreds of other detainees who filed their habeas petitions in federal court before the law was passed. "If Congress had really wanted to revoke habeas jurisdiction over pending cases, it would have said so," detainee lawyer Thomas Wilner told the court.
Appearing for the government, Deputy Assistant Attorney General Gregory Katsas naturally disagreed. "The act ousts the court's habeas jurisdiction over that set of claims effective immediately," he said, referring to the claims of Lahmar and the other detainees.
"Are you saying they don't have any rights?" asked Judge David Sentelle. "All the Supreme Court gave them in Rasul is the right to file a piece of paper, based on which we cannot possibly grant release?"
Yes, Katsas answered, that's the deal. They can file their habeas petitions, but courts must ignore them.
Judge Judith Rogers pushed a bit: "Can a court hear factual evidence" from the Guantanamo detainees? she asked. "No," Katsas replied. The DTA limits the court to whatever evidence was presented before the CSRT. No new inquiries.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.