The Bush administration wrongly claims that history is on its side in the Gitmo cases.

The law, lawyers, and the court.
Dec. 4 2007 6:08 PM

Don't Know Much About History

But in the Gitmo cases, that won't stop the Bush administration from claiming it's on their side.

Every bad argument needs a good sound bite, and in that respect the Bush administration is on its game in the Guantanamo cases being argued tomorrow. Here's the shiniest nugget from the government's brief, too quotable to resist: "The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war."

The sentence basks in the glow of relativity: If the men being held in Guantanamo are getting more than anyone like them has ever gotten, then what do they have to complain about? And yet the academic and military experts who have weighed in on this week's cases, in a shower of friend-of-the-court briefs, fill in history that the government has erased, and reach a very different conclusion. What's unprecedented is the Bush administration's effort to run the detainees through stripped-down hearings and then hold them indefinitely, while at the same time barring them from trying to argue in a real court that they are entitled to something more.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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To understand the government's claim, begin with this elaboration in the administration's brief: "there is no history of providing any habeas review to aliens captured abroad during an armed conflict." Habeas is the way you get into court to challenge your detention. In a run-of-the-mill criminal case, habeas rights come into play after a defendant has been convicted and lost his appeal. But in other contexts—deportation, detention, any other situation in which the executive branch is holding you outside of a regular criminal proceeding—habeas is generally the only way you have to get to court at all. And so, a group of constitutional law professors point out in one amicus brief, courts have allowed "detained enemy aliens" to use habeas to challenge their detention for various reasons since the War of 1812. In the 19th century, British subjects used habeas to argue that their detentions were at odds with a Pennsylvania statute. In the 1940s, German enemy aliens used the writ to argue that they shouldn't be sent off to Germany without the chance to leave on their own for another country. Crucially, other aliens throughout U.S. history were able to use habeas to challenge "the determination of their enemy alien status." That's precisely what's at stake for the Guantanamo detainees: Can they go to federal court in an effort to show that they are not enemy combatants, as the government has designated them?

And if the detainees do make it to federal court, what's the scope of review for their habeas claims? In the government's view, the answer is "extraordinarily limited" and "highly circumscribed." The courts don't get to look at guilt vs. innocence, or the strength of the evidence. But again, there's a bunch of experts, this time legal historians, who disagree that habeas review has only been about technicalities, like jurisdiction. It's true that courts reviewing habeas petitions don't normally look at the facts of the underlying case, but that's in the context of a criminal habeas proceeding, where a defendant has already gotten two chances to air his claims—a trial and an appeal. In cases of executive detention, on the other hand, the courts of the past "commonly exercised independent review over the factual assertions of prisoners." In the 17th and 18th centuries, there was a general rule against rehashing the facts, and then judges broke it when they realized that a defendant had no other meaningful chance to explain why he didn't deserve to be locked up. It makes sense that this has long been part of the writ of habeas, because it is, most essentially, what the writ is for.

The long-ago past matters to the Guantanamo detainees. Last year, Congress seriously curtailed the detainees' rights to statutory habeas—the form of the writ that Congress has explicitly written into law. And so the detainees are calling on the Supreme Court to recognize and flesh out their habeas rights as a constitutional matter, which means that the court will begin, at least, by thinking about habeas as the framers would have. At the same time, the more recent past matters, too—in particular, the 20th-century Geneva Conventions.

In the last Guantanamo go-round, Hamdan v. Rumsfeld, the Supreme Court said that Geneva's protections apply to the detainees. Article 5 of Geneva provides captured alleged combatants with a hearing before a "competent" military tribunal, which determines their status—are they really the enemy? In this week's cases ( Boumediene v. Bush and Al-Odah v. Bush), the government says that the detainees have gone before a tribunal "that afford protections greater than those outlined by Article 5." There's that comparative spin again, this time even in italics. But the amicus brief of a group of retired military officers explains why greater should really be a hell of a lot lesser.

In the past, the military has dealt with captured combatants ("all persons taken into custody by U.S. forces") using procedures outlined in an Army regulation called 190-8. For the Guantanamo detainees, the administration set up a new creature, the Combatant Status Review Tribunal. "The CSRTs depart significantly from standards followed by the military for decades," the retired military officers write.

They map out serious deficiencies. The first is "command influence—the pressure that superiors exert over military subordinates," which "is so harmful to the objectivity and the validity of any military tribunal that it is prohibited by the Code of Military Justice." And yet command influence is "inextricably intertwined" with the CSRTs. This is the case to such a degree that in some of the unusual cases in which a CSRT panel found a detainee not to be an enemy combatant, a higher-ranking officer demanded a do-over.

The second difference between the CSRTs and traditional military practice is that the CSRTs admit evidence against the detainee that has been obtained through coercion—testimony given under torture. Article 5 prohibits this, for all the obvious reasons, and the 190-8 tribunals have not allowed it. Then there is the question of what it means when the findings of a CSRT turn out to be wrong. Traditionally, prisoners of war have been useful to us only as long as the hostilities have lasted; enemy combatants, whatever the reason for their detention, were released at the end of the conflict. But the war on terror, according to the administration, has no end date.

Finally, the retired officers point out that the stripped-down nature of the CSRTs—defendants also aren't allowed to have lawyers, and in another contradiction of Article 5, the panels are instructed to presume that the government's evidence is "genuine and accurate"—is far less justified because none of the procedures are about battlefield sorting. In the past, the 190-8 tribunals had to operate in the midst of armed conflict, for example in Vietnam. The CSRTs are assessing, with no huge urgency, the status of people who have been held for years and are far removed from any theater of war. Shouldn't the CSRTs be more careful, not less? And yet the retired officers conclude, "Taken together, these differences show that CSRT proceedings are little more than a facade, without even the substantive protections that ensure compliance with Article 5 of the Geneva Conventions and that invest 190-8 tribunals with legitimacy in the eyes of the world."

So much for the government's historical claims and comparisons. But don't expect any of these analyses to matter when Solicitor General Paul Clement argues against the detainees tomorrow. If history is any guide, the administration's lawyers won't let the facts stop them.

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