Human Rights Organization
From American Gulag
"We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens" -- Sandra Day O'Connor in Hamdi v. Rumsfeld opinion
After the attacks on September 11, 2001, the Bush Administration sought expanded executive power to fight the War on Terror. The administration maintains that in fighting this war, Congress and the judiciary should defer to the wartime powers of the president. Thanks largely to tireless efforts from lawyers and human rights groups in driving cases through the judicial system, the Supreme Court has dealt repeated blows to the administration’s broad interpretation of executive power since September 11, 2001. Starting with cases such as Rasul v Bush the court has rebuked the “blank check” President Bush sought in the name of homeland security and fighting terror. Many of the administration’s expanded powers remain unchecked, however, and new laws like the Detainee Treatment Act and the Military Commissions Act of 2006 have undercut the court’s efforts to limit executive power. It remains to be seen whether the Congress, now ruled by Democrats, will reverse this legislation--or whether the Court, now more conservative with the additions of John Roberts and Samuel Alito, will even challenge the Military Commissions Act itself.
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[edit] Notable Human Rights Organizations
ACLU[1] The organization has been instrumental in acquiesing thousands of classified documents through a law suit against the CIA in 2004. These documents have played a significant role in unveiling detainee abuse in Guantánamo and Iraq.
Center for Constitutional Rights[2] The Center for Constitutional Rights brought the case of Rasul v. Bush to the Supreme Court, and is currently involved in the Al-Odah case. It coordinates the hundreds of lawyers and firms representing the detainees held in Guantanamo Bay seeking habeas corpus petitions.
Human Rights Watch[3] HRW has been involved in exposing military abuse at Camp NAMA and other locations in Iraq.
[edit] Human Rights Organizations and Their Relationship with Media
The effectiveness of Human Rights Watch and other human rights organizations depends largely on whether journalists read their reports and use them in their own stories. Human Rights Watch employees are sometimes the best sources available to journalists. Human rights organizations and the media have a relationship in which they share information. Human Rights Watch was the first organization to communicate with Captain Ian Fishback, a military whistleblower whose accounts of detainee abuse were leaked and who became the poster boy for McCain’s amendment.
[edit] Supreme Court Cases
After 9/11, President Bush gained what has been called a “blank check” for Presidential powers. The authorization for the use of Military Force, “the AUMF”, set forth the mission in Afghanistan to destroy the Taliban and Al Qaeda. The role of the courts in the “GWOT” has been two-fold: to balance the executive branch and to set the precedent of hearing detainee cases.
The Big Three
Hamdi v. Rumsfeld The Supreme Court ruled in June. 2004 that Yasser Esam Hamdi, a U.S. citizen captured in Afghanistan and held as an enemy combatant for nearly three years, had the right to contest his detention in court. Hamdi was arrested by the U.S. Military in 2001, accused of fighting for the Taliban against the U.S., declared an "enemy combatant" and transfered to a military prison in Virginia. His defense lawyer filed for a petition for a writ of certiorari, arguing that the government had violated Hamdi's Fifth Amendment right to due process by holding him indefinitely without access to an attorney or trial. The government aruged that during wartime, the Exectuive had the right to declare people "enemy combatants" with restricted access to the court system.[[4]]
In an 8-1 decision, the Court sided with Hamdi, rejecting the government's contention that the Courts had no right to hear Hamdi's challenge. The Court was split, however, in whether the detentioin had been authorized by Congress. The plurality of justices ruled that the government still has the authority to detain U.S. citizens as enemy combatants, even if they can challenge their detentions. Justices Souter and Bater Ginsberg, however, argued that Congress had not authorized Hamdi's detention. Hamdi, who was held in solitary confinement for three years and never charged with a crime, was released and flown home to Saudi Arabia, where he was to renounce U.S. citizenship and abide by strict travel restrictions.[[5]]
Rasul et al. v. Bush On the same day as it announced the Hamdi decision, the The Court also ruled that prisoners who were not U.S. citizens could challenge the legality of their detention as well. The case was brought by four British and Australian citizens who had been caught in Afghanistan and Pakistan and transferred to Guantanamo Bay. They, too, sought a writ of habeus corpus declaring their detentions unconstitutional. The government argued that the detainees were not U.S. citizens and held on territory that was being leased from Cuba, thus federal courts had no jurisdiction to hear the case.[[6]]
In a 6-3 decision, the Court disagreed with the government. Because the U.S. exercises "exclusive jurisdiction and control" over Guantanamo Bay, the majority argued, detainees were free to challenge their detention as unconstitutional, regardless of citizenship status.
Hamdan v. Rumsfeld In June 2006, the Supreme Court ruled that the Detainee Treatment Act of 2005 did not repeal habeas corpus and that the Bush administration's military commissions were unlawful. The 5-3 decision, written by Justice John Paul Stevens, offered a rebuke to the Administration's broad interpretations of presidential power in fighting the war on terror.
Other important cases
Rumsfeld v. Padilla In a 5-4 ruling announced the same day as the Hamdi and Rasul decisions, the Court dismissed the case on a technicality, ruling that that the case had been improperly filed. Jose Padilla, an American citizen, was arrested in Chicago after returning from Pakistan, on suspicion of planning a radioactive "dirty bomb" attack. After the Supreme Court ruling, in Sept. 2005, the 4th Circuit U.S. Court of Appeals ruled that the president had the authority to detain Pedilla without charges. In November, he was indicted on conspiracy charges, and transferred to civilian custody in January 2006. He was convicted on those charges in August 2007--but not on any charges pertaining to a "dirty bomb" attack--and sentenced in Jan. 2008 to 17 years and four months in prison.
al-Marri v. Wright The U.S. Fourth Circuit Court of Appeals ordered in June 2007 that Ali al-Marri, an alleged enemy combatant, be released by the government. A citizen of Qatar, Al-Marri had originally been arrested in Peoria, Ill., in 2001, where he was studying computer science as a graduate student. He was charged with credit card fraud and lying to federal agents. In 2003 he was moved to a naval brig in Charleston, South Carolina, as President Bush determined[7] al-Marri was an enemy combatant and the government argued he was a sleeper agent for Al Qaeda. He was the only person on the American mainland known to be held as an enemy combatant, which allowed the court to rule [8]that the government cannot circumvent the civilian criminal justice system through military detention. The court ordered that al-Marri be charged in the civilian court system, deported or released. The decision appeared at the time not to affect the rights of those held at Guantanamo Bay, but was still considered a "stinging rejection" of the Bush Administration's use of executive authority to combat terrorism.[9]
Cases on the docket
Al Odah v. United States Considered by some in the media to be "The Supreme Court showdown of the year," arguments in [10] Al Odah v. United States, along with Boumediene v. Bush were made in December 2007, and a decision is expected in June. Originally incorporated into the Rasul case, the plaintiffs were seeking habeus corpus rights. In Feb. 2007, the D.C. Court of Appeals ruled that the plaintiffs, as non-citizens, were not entitled to habeas review due to the newly passed Military Commissions Act. The Supreme Court originally refused to hear the case, before making an unprecedented reversal [11].
[edit] Effectiveness of Supreme Court Cases
In many respects, the Supreme Court has been slow to take on the Bush Administration and its expansive view of presidential power in fighting the GWOT. When it has ruled, however, it has generally sided against the Administration, serving as an effective check on the executive. Many of its most prominent rulings, especially those regarding the status of detainees classified as "enemy combatants," have been limited in effectiveness by a legislative branch that was, until 2006, Republican dominated. Laws such as the Detainee Treatment Act of 2005 and especially the Military Commissions Act of 2006[12] have done much to reverse the decisions made by the Supreme Court in cases such as Hamdan, limiting the rights granted to detainees. The pending decision on the Al Odah Case, however, could render the MCA unconstitutional.
[edit] Media Coverage of Supreme Court Cases
While critics have blasted the mainstream media for failing America in covering the GWOT, the press has largely devoted extensive coverage to judicial oversight, especially Supreme Court cases. The press often missed the mark, however, by failing to grasp the full ramifications of the rulings. After the Court issued its ruling in the Hamdan v. Rumsfeld case, for example, media critic Eric Umansky says that "almost all papers, the Los Angeles Times being an exception, played the ruling narrowly." [13] The Washington Post's headline read "High Court Rejects Detainee Tribunals," while the LA Times offered the more expansive banner headline "High Court Rejects Bush's Claim that He Alone Sets Detainee Rules." The Times alone also recognized that the majority opinion, written by Justice Stevens, extended certain Geneva Convention protections to detainees, quoting an "administration lawyer" saying, "The opinion seems to provide strong support for the position that even interrogation of terrorists must comply with the Geneva conventions."[14] Still, most news outlets captured the sense that the ruling was a rejection of the Bush Administration's core principles in fighting the GWOT, in the words of the New York Times, "a historic event, a defining moment in the ever-shifting balance of power among branches of government."[15]
[edit] Accountability or Acquiescence: A report on the courts and the War on Terror
By Patrick Fitzgerald
The year 2004 appeared to usher in a long awaited victory for Barbara Olshansky[16]. Olshansky was then deputy legal director of the Center for Constitutional Rights,[17] a New York based nonprofit legal organization. She had just won the biggest case of her 19-year legal career; as lead attorney for a group of detainees held at the U.S. Naval Base in Guantanamo Bay, Cuba, she argued that her clients had the right to challenge their internment in federal court. In what The New York Times billed as “the most important civil liberties case in half a century,”[18] the Supreme Court agreed, ruling in Rasul v. Bush that detainees, even non-U.S. citizens, held at Guantanamo had the right to seek a writ of habeas corpus declaring their detention illegal. It was the first time the Court had interjected itself into the “War on Terror,” rejecting the Bush administration’s broad interpretation of executive power in wartime.
A year later, Olshansky was back at Stanford, her law school alma mater, accepting the award for Public Interest Lawyer of the Year from the Stanford Public Interest Law Foundation. Speaking at the award dinner, Olshansky, with trademark bushy black hair and thick-rimmed glasses, was candid about the progress--and setbacks--she had seen in the past year. Since the Rasul decision, the Center for Constitutional Rights had enlisted more than 500 attorneys from 125 firms working pro bono to file some 200 habeas petitions for Guantanamo detainees. But the U.S. Senate had just passed an amendment to the Detainee Treatment Act that effectively stripped federal courts of jurisdiction for habeas petitions from Guantanamo. “I feel like I’m arguing Rasul all over again,” Olshansky said.[19]
Her experience is typical in the on going back and forth between the Supreme Court and the Bush administration over the War on Terror. Thanks largely to tireless efforts from human rights groups and lawyers like Olshansky in driving cases through the judicial system, the court has dealt repeated blows to the administration’s broad interpretation of executive power since September 11, 2001. Starting with cases such as Rasul the court has rebuked the “blank check” President Bush sought in the name of homeland security and fighting terror. Many of the administration’s expanded powers remain unchecked, however, and new laws like the Detainee Treatment Act and the Military Commissions Act of 2006[20] have undercut the court’s efforts to limit executive power. It remains to be seen whether the Congress, now ruled by Democrats, will reverse this legislation--or whether the Court, now more conservative with the additions of John Roberts and Samuel Alito, will even challenge the Military Commissions Act itself.
Just over two months after the September 11 attacks, President Bush signed a presidential order authorizing the creation of new military tribunals to try non-citizens suspected of terrorism. The order, which coined the term “enemy combatant,” established that the tribunals would be held at Guantanamo Bay and contained a provision against judicial review. A defendant, it reads, “shall not be privileged to seek any remedy or maintain any proceeding sought on the individual’s behalf in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.”[21]
Early on, however, the Justice Department utilized civilian courts to prosecute terrorists. The famous examples--“20th hijacker” Zacarias Moussaui, “American Taliban” John Walker Lindh, “Shoe Bomber” Richard Reid as well as lesser known cases of six Yemenis from Lackawanna New York, and an alleged terror cell in Detroit--all faced prosecution in civilian courts.
The Bush Administration considered the Moussaui trial “a circus” and moved to set up military tribunals. They created a system where they could keep intelligence information secret, use information derived from “enhanced interrogation” techniques and mitigate the possibility of “habeas lawyers” delaying the process. The process reflected the administration’s central philosophy in fighting the War on Terror--that the other two branches should defer to the expanded wartime powers of the executive.
“[I]t would be a mistake to believe that the Constitution’s framework for criminal justice should apply to war,” wrote John Yoo[22], a member of the Justice Department’s Office of Legal Counsel, wrote in his book War by Other Means (2006)[23]. “Applying criminal justice rules to al Qaeda terrorists would gravely impede the killing or capture of the enemy, as well as compromise the secrecy of the United States’s military efforts.”
Concerns about media coverage of the terrorism cases led to the administration favoring tribunals. As Louis Fisher, a separation of powers expert at the Library of Congress, wrote in his book Military Tribunals and Presidential Power (2005)[24], “Among those concerned that a military tribunal might jeopardize individual rights, many acquiesced to presidential power because they feared the kind of televised trial that resulted in the acquittal of O.J. Simpson in civilian court.”
“I don’t think anyone wants to see Osama Bin Laden brought before a court here to be defended by Johnnie Cochran,” Stewart A. Baker, a Washington attorney and former general counsel to the National Security Agency, told The New York Times.[25]
The first 110 detainees arrived at Guantanamo from Afghanistan on January 11, 2002, but the first tribunal did not convene until in August 2004.
“The process has been extremely slow,” said Laura K. Donohue[26], a fellow at the Stanford Constitutional Law Center who has researched constitutional law, counterterrorist law, and national security in the United States, United Kingdom, Ireland and Turkey.
Instead of focusing on substantive issues of justice, guilt and innocence, Donohue said the courts have used individual cases to address the larger constitutional question at hand—whether the executive had the right to detain “enemy combatants” in the first place.
“There’s this massive battle between the judiciary, legislative, and executive branches going on,” Donohue said. “The courts are trying to push back, and cases for individual justice have become secondary.”
But the cases of two individuals, Yaser Esam Hamdi and Shafiq Rasul, soon made headlines nationwide.
Yaser Esam Hamdi was born in Louisiana but grew up in Saudi Arabia. He was captured by the Northern Alliance in Afghanistan in 2001, and subsequently turned over to American authorities and held as an agent of the Taliban. Hamdi’s father, filing a habeas petition in a district court in Virginia in 2002, alleged that his son was mistakenly captured while doing humanitarian relief work. (There is some evidence to support his claim: according to David Cynamon,[27] a lawyer representing the Kuwaiti detainees at Guantanamo, less than 20 percent of detainees were “captured in the battlefield” but were instead turned in for bounty payments the United States offered for alleged Taliban or Al Qaeda fighters.)
The “habeas lawyers” the government considered with such contempt soon got involved, helping file petitions for Hamdi and several other Guantanamo detainees in the first months of 2002. The government did as much as it could to make life difficult for the lawyers, however, limiting access to their clients and insisting that all records of conversations with detainees remain classified.
“It’s a pain in the neck,” said Mark Falkoff,[28] a lawyer who represents a contingent of Yemeni detainees at Guantanamo. Lawyers must wait six months to gain clearance to visit the military base, a process that includes extensive background checks (“They interviewed my grandmother,” Falkoff said). Once at Guantanamo, the lawyers are only allowed to meet with their clients for five and a half hours, only on weekdays—constraints that Falkoff believes are designed “to sow distrust” between lawyer and client. While the military backed down from its request videotape the meetings, lawyers bring their own interpreters instead of using the government’s. At $1,500 a day, interpreters present a significant hurdle for lawyers representing detainees pro bono.
Hamdi won his first ruling at the district court, which ordered the government to release him. But the U.S. Fourth Circuit Court of Appeals--which lawyers David Cole and James Dempsey dubbed “the most conservative court in the country”--reversed on appeal.
The Fourth Circuit “juggled two values—the judiciary’s duty to protect constitutional rights versus the judiciary’s decision to defer to military decisions by the President—and came down squarely in favor of presidential power,” said Fisher, In what Fisher, who called the ruling “a strange reading of the separation of powers.” The panel deferred to the administration’s determination that Hamdi was an “enemy combatant,” finding that federal courts should practice restraint during wartime because “the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not.”
The Supreme Court’s ruling[29] in June 2004 could best be described as a “yes and no” response to the Fourth Circuit. While the Court “rejected the government’s central argument that Hamdi’s detention was quintessentially a presidential decision, not to be reevaluated and second-guessed by the courts,” said Fisher, it failed to reach a “clean 8-1 ruling.”
Only Justice Clarence Thomas dissented from the basic ruling. Four justices, a plurality, ruled Congress had authorized the detention of citizens, but that detainees had a right to challenge the detention before a neutral decision-maker. Justices David Souter and Ruth Bader Ginsberg concurred that Hamdi had the right to challenge, but disagreed that his detention had been authorized. The case created strange bedfellows as Justices Antonin Scalia and John Paul Stevens, polar opposites in terms of ideology, issued a strong dissent against the power of the executive to detain combatants.
Olshansky found little comfort in the Hamdi decision, despite the apparent victory for detainees and civil rights. The decision simply mandated that challenges to detentions be heard in front of a neutral tribunal, not necessarily a federal court; military hearings were not ruled out. Hearsay evidence would be permitted, and it would be possible for the government to presume detainees guilty, forcing them to prove they are not enemy combatants. “By turning the foundational principle of our criminal justice system on its head, the plurality has built a mountain that few detainees could ever successfully climb,” she wrote in her book, Democracy Detained (2007).[30]
“Most disturbing, however, is the fact that the Supreme Court’s Hamdi decision did not specifically deny the president this power; it merely required the government to put forth some minimal amount of evidence to justify the military detention,” she wrote. The decision “set forth some of the rules governing a challenge to the detention of a person who has been designated an ‘enemy combatant,’ but it did not specify what form the process would take; it did not articulate the evidentiary rules that would apply; and it did not declare which entity would be the proper decision-maker to rule upon the legality of such a detention”
Most of these legal subtleties were lost on the mainstream media. Many outlets took the ruling at face value: a rejection of the Bush administration’s expanded wartime powers. “Supreme Court Backs Civil Liberties in Terror Cases” read the headline in The Washington Post[31]. The New York Times dubbed the decision “a significant setback for the Bush administration’s approach to the campaign against terrorism that began on Sept. 11, 2001.”[32] Justice Sandra Day O’Connor’s quote from the decision—“a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens”—was quoted ad nauseum.
“I don’t think the media is getting it,” Donohue said. “They haven’t gone after the courts for their lack of a substantive ruling.” Media outlets “have taken government statements at face value, there was no deeper probing,” she said.
Olshansky, however, credited The New York Times especially for getting the story straight and praised the press for informing the public of the court decisions. Times reporter “Linda Greenhouse[33] is a saint,” Olshansky said. “It wasn’t the lawyers that got the people out, it was the media. Thank God for the media.”
On Sept. 23, 2004, the government announced it was releasing Hamdi. He was flown home to Saudi Arabia but required to renounce his U.S. citizenship and abide by strict travel restrictions. The Washington Post reported[34] Hamdi could not leave Saudi Arabia “for a certain time” and would be prevented from “traveling to the United States, Afghanistan, Iraq, Israel, Pakistan, Syria, the West Bank and the Gaza Strip.”
On the radio show “Democracy Now!” Olshanksy said the government was admitting defeat: “Well, I think this is an interesting case, because it was always really about the President’s arrogation of power and the question of whether he had the power to detain people called ‘enemy combatants’ without any legal rights whatsoever, and detain them indefinitely. It wasn’t really so much about Mr. Hamdi, unfortunately.”
The same could be said for Olshansky’s client, Shafiq Rasul.
In October 2001, Rasul, a British citizen, traveled to Pakistan with two friends, one of whom was to marry a woman in his father’s old village. According to Olshansky’s book, the three left the village for a brief trip to Afghanistan. According to the BBC[35], Rasul, a shy FC Liverpool fan, fell out of contact with his family in December. The U.S. military reportedly captured him in Mazar-e-Sharif, Afghanistan. Olshansky alleges the three were originally detained by Northern Alliance Forces seeking the lucrative bounty. The 24-year old and his friends were declared “enemy combatants” and hauled off to Guantanamo Bay in January 2002.
Soon after, the Center for Constitutional Rights took up their cause, filing two habeas corpus petitions in federal court challenging the detentions. Olshansky, who spearheaded the case, never received security clearance to visit her clients at Guantanamo. “Heaven knows why,” she said.
In court, the government argued that because the detainees were being held at Guantanamo the federal judiciary was powerless to review the cases. The detainees were foreign nationals held beyond “the ultimate sovereignty” of the United States, it contended. The district court agreed with the government, as did the Court of Appeals. The Supreme Court, however, did not.
On June 28, 2004, the same day as it announced the Hamdi decision, the Supreme Court ruled[36] 6 to 3 in Rasul v. Bush that because the United States exercised “exclusive jurisdiction” over Guantanamo, detainees were free to file habeas corpus petitions in federal court. In the majority opinion, Justice John Paul Stevens wrote that the right to habeas corpus was not dependent on citizenship, extending the ruling beyond the concurrent decision in Hamdi.
The victory meant little for Rasul himself, who had been released without charge in March—over two years since his initial imprisonment. For Olshansky, the battle was just beginning. The New York Times reported[37] the next day that Olshanksy intended to “move quickly to test the scope of the court’s ruling,” by launching a class action suit on the behalf of more detainees.
This would not be easy. The government initially said in early July that it would allow lawyers to visit clients in Guantanamo, but reversed its position by the end of the month—arguing that the detainees had the right to challenge their detentions but not the right to counsel. It set up three-person Combatant Status Review Tribunals (CSRTs)[38] to explain the grounds for detention and give detainees a chance to contest their “enemy combatant” status. The panels were closed to the public, and detainees only were given access to a “personal representative,” who was a military officer, not a lawyer.
On August 2, 2004, the Center sought a stay on the hearings, arguing that the detainees must first be granted access to attorneys. The hearings “are a sham. The detainees are given no access to counsel, have no right to meaningfully contest any classified evidence against them and no meaningful way to call any witnesses in their favor,” Jeff Fogel, legal director for the Center, told The Washington Post.[39] The hearings continued.
Few major newspapers marked the one-year anniversary of Rasul and Hamdi in 2005. But the Long Island-based Newsday published an investigative piece[40] into the current state of the detainees. The newspaper reported that in the tribunals, “military officers have found the military was correct in holding 520 of 558 prisoners as enemy combatants.” Meanwhile, “the government has fended off court intervention with a narrow reading of the Supreme Court decision, arguing that it did not approve judges overseeing ‘war operations,’ and has stymied the lawyers with a litigious approach and an obstacle course of security restrictions,” the paper reported. The Supreme Court’s ruling in Rasul had been effectively neutered.
In December, Congress got in on the action, passing the Detainee Treatment of 2005.[41] Formally an amendment to a defense appropriations bill, the Act became known as the McCain Amendment, ostensibly aimed to promote the inhumane treatment of prisoners. But the bill also prohibited non-citizens held at Guantanamo from submitting habeas corpus petitions.
Several months later, the landmark Hamdan v. Rumsfeld decision[42] neutralized the DTA in many respects. The Supreme Court ruled 5 to 3 that the military commissions for detainees were unauthorized by federal statute violated international law.
The court also ruled in Hamdan that detainees were subject to at least partial protection under the Geneva Conventions, a provision most media outlets missed. Only The Los Angeles Times, according to media critic Eric Umansky,[43] grasped the full significance of the ruling and reported accordingly.
After Hamdan, Congress again went to work. “Unfortunately,” Olshansky writes in Democracy Detained, “the victory for Salim Hamdan and the other men charged before the commissions apparently never stood on solid political ground.” On the eve of midterm elections, Congress struck back with the Military Commissions Act of 2006, signed into law by President Bush on October 17, 2006. The bill contained an official definition of “illegal enemy combatant” (“dangerously broad,” The New York Times editorial board called[44] it), stripped from detainees the right of habeas corpus and barred the judiciary from reviewing any aspect of the system save for verdicts by military tribunals. It was a major blow to human rights activists, and for the power of the courts to check the executive. Both the legislative and executive branches, in effect, had ganged up on the judiciary.
Then-chairman of the Senate Judiciary Committee, Sen. Arlen Specter, had proposed an amendment to the bill preserving habeas corpus rights for detainees that had been narrowly defeated, 51 to 48. Specter called the bill “patently unconstitutional on its face,” but then proceeded to vote for it anyway after his amendment failed. He later told The Washington Post[45] that the bill had good items, “and the court will clean it up” by restoring habeas corpus. The judiciary, it seemed, might have a place after all. Meanwhile, over 500 detainees at Guantanamo remained in legal limbo.
It remains to be seen how much the courts will “clean up” the MCA and reassert themselves into the battle over fighting the War on Terror. The Supreme Court initially refused to hear two consolidated habeas corpus cases, Al Odah v. United States and Boumediene v. Bush before reversing itself less than two months later and agreeing to hear the case, the first such reversal in 60 years.
The government, the human rights groups and the media are all aware of the stakes. Fox News[46] described Al Odah as “one of the highest-profile cases the Supreme Court will hear this year.” The New York Times editorial board dubbed[47] it “The Supreme Court Showdown of the Year.” The official question at hand is whether the Military Commissions Act, which prohibited courts from hearing habeas petitions, is constitutional in light of the Constitution’s mandate that Congress not suspend “the privilege” of habeas corpus “unless when in cases of rebellion or invasion the public safety may require it.” But what’s truly at stake, as The New York Times reported,[48] “is whether the Supreme Court itself will continue to have a role in defining the balance or whether, as the administration first argued four years ago, the executive branch is to have the final word.”
The continuing struggle between the courts and the executive could not have happened without human rights organizations like the Center for Constitutional Rights, or lawyers like Olshanksy.
“The CCR has been absolutely essential,” Donohue said. “Because they are the ones that actually bring the cases.”
Dozens of law firms and hundreds of lawyers have lent their expertise, mostly under the leadership of Olshansky and the Center. Falkoff, who got involved in 2005 after the Rasul ruling, called Olshansky “a force of nature” and credited the Center for coordinating action among the many cases and clients. “Every law firm that takes a case doesn’t have to reinvent the wheel,” Falkoff said. “It was the CCR, and remains the CCR, that is moving this forward.”
Olshansky, for her part, refuses to take credit. “It was really quite an amazing turnout by mostly the private commercial bar” to take the Guantanamo cases, she said. “They came to the rescue like the cavalry.
“Even so,” she continued, “we haven’t gotten as many as we would have liked.”
The Bush administration has done its share, attempting to intimidate lawyers from taking on the cases. In January 2007, then-Assistant Defense Secretary for Detainee Affairs Cully Simpson[49] said in a radio interview that clients of large corporate law firms working on detainee’s rights cases should boycott those firms for “representing terrorists.”
The backlash was immediate. Simpson resigned, and even more large corporate firms began helping out with pro bono work.
“More heavyweights moved into the ring,” Donohue said. “The legal world takes very seriously the concept that everybody deserves a defense.”
Over six years since 9/11, the judicial branch is still struggling to assert itself as the Bush administration pursues its “War on Terror.”
“I think it depends on who you ask,” said Jeffery Fisher, an associate Professor at Stanford Law School, on whether the Supreme Court has been effective. “It has put its foot down to some degree. Some people think that was too much, some people think it has not done enough.”
For Donohue, the answer is easy. “They’ve been very ineffective,” she said, citing the MCA and adding that, “Congress has been complicit in stripping the power of the judiciary.”
It doesn’t help that the media has often missed the big picture.
“In covering hearings, the big point they’re missing it that there’s been deliberate inaction on Capital Hill, in that they’re waiting for a decision from the court,” said Anant Raut[50], a former lawyer for five Guantanamo detainees who now is counsel for the U.S. House Judiciary Committee. “Congress has taken a wait and see approach to see if [The Supreme Court] is going to bail them out.”
The press has also bought into the terminology used by the Bush administration, Raut said, using “detainee” instead of “prisoner” and often failing to note that 95 percent of “enemy combatants” at Guantanamo were not picked up by U.S. troops in the field of battle.
“The Bush administration has done a fantastic job of setting the terminology,” he said. “The press is as complicit as anyone is.”
For Olshansky, activists and lawyers must do a better job working with the press and the public.
“We have not been working on framing this in a way that is digestible to the public,” she said. “It’s just not a tool that we’ve used well in any part of this battle.”
For now, all sides await the Supreme Court’s decision in Al-Odah, due sometime in June. As usual, no one is sure what the outcome will be.
“The court doesn’t give any indication of where it’s leaning,” Fisher said. “Nobody knows.”
[edit] Relevant Links
Find Habeas [51] Cornell University Supreme Court Collection [52]
