By November 2002, one year after 9/11, upwards of 625 detainees were held at Guantanamo Bay detention camp. The Bush Administration had defined them as ‘illegal enemy combatants‘, therefore not entitled to the protections of the Geneva Conventions, or even the United States Constitution, as Guantanamo is not American soil. As a consequence, detentions could be extended indefinitely without charge until the end of the ‘war on terror’.
In Hamdi v. Rumsfeld (2004), the US Supreme Court ruled that those detained as enemy combatants who are U.S. citizens must be provided a ‘meaningful opportunity’ to challenge the factual basis for their detention. The Bush position had been defeated in two key points when, in Rasul v. Bush (2004), the Court held that the foreign nationals imprisoned without charge at Guantanamo Bay are within the statutory jurisdiction of U.S. courts, and also entitled to challenge the basis for their detention. In an attempt to satisfy this requirement, the Pentagon first created the Combatant Status Review Tribunal. The Detainee Treatment Act of December 2005 limited the D.C. Circuit Court of Appeals’ power of review and stated that detainees (still designated as ‘enemy combatants’) were not entitled to the right of outside counsel nor to habeas corpus. However, the Supreme Court soon ruled that the creation of the CSRT overstepped Presidential authority (Hamdan v. Rumsfeld, 2006), and that it represented an unconstitutional violation of the separation of powers. Likewise, it declared that the Military Commissions Act of 2006 providing Congressional authorization for military commissions required in Hamdan was an unconstitutional suspension of habeas corpus (Boumediene v. Bush, 2008).
The Obama Administration no longer sought to detain petitioners on the theory that they were ‘enemy combatants’. In fact, in January 2009 President Barack Obama signed an order to suspend the proceedings of the Guantanamo military commission and to shut down the detention facility within the year.
Nevertheless, post-Boumediene Circuit Court Decisions left broad scope for the courts’ free interpretation and discretion as to whether someone could be lawfully detained based on the President’s War Powers. In Al-Bihani v. Obama (2010), the D.C. Circuit ruled that detainees need only have ‘provided support’ to Al-Qaida or the Taliban, and that international laws of war cannot act as “extra-textual limiting principles for the President’s war powers” on the ground that they “have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts”. On top of this, Al-Adahi v. Obama (D.C. Circ. 2010) instituted a ‘mosaic theory’ for weighing evidence, which did not require each and every piece of the Government’s evidence to bear weight without regard to all (or indeed any) other evidence in the case. Interestingly enough, a study of Seton Hall School of Law reports that before Al-Adahi detainees used to win 56% of their habeas petitions, and now they lose 92% of them.
Under the National Defense Authorization Act of 2011, Congress prohibited the transfer of detainees from Guantanamo abstent a court order or a transfer certification containing the express commitment to taking “effective steps to ensure the individual cannot take action to threaten the United States”. Despite criticisms from the Obama Administration, this limitation was renewed in the 2012 NDAA, which prevented the use of ‘public funds‘ with regard to the transfer of detainees, including those who have been cleared for re-patriation. This prohibition ultimately means that soldiers stationed at Guantanamo Bay won’t release cleared detainees from handcuffs and walk with them toward the exit of the detention facility because this per se involves the taxpayer’s money.
Tax matters aside, I am increasingly concerned about rules that only lay down undetermined legal concepts. Especially when civil liberties are at stake. Does ‘meaningful opportunity’ to challenge the basis for detention imply an absolute respect for all the provisions of Due Process? Where do you draw the line for ‘substantial support’? How does a sovereign state ‘ensure’ that a certain individual cannot take action to threaten the U.S.? Although human rights activists would be delighted to see international justice prosecute not only those who carry out wars in violation of International Humanitarian Law, but also those who ‘substantially support’ them…