Memo 2
memorandum #2
TO: Dr. Christopher Foreman
FROM: Niky Stockhausen
RE: Global War on Terror Detainees and Habeas Corpus - Political Analysis
DATE: 25 October 2007
INTRODUCTION
In the five years since the first detainees arrived at Guantanamo Bay, copious organized interests have opinioned on the ability of said detainees to challenge the premise of their detention in US courts. All of this has happened against the backdrop of increased public fear and heightened national security rhetoric post-September 11. While there are nuances to both sides, a clear dividing line pits those who wish to grant more rights to detainees in the Global War on Terror, and those who do not.
A TURNING POINT IN PUBLIC OPINION
Prior to 2004, most non-legally based organizations, such as Amnesty International, would barely touch the issue of detainee rights and habeas corpus. Organizations with a more legal focus, such as the Center for Constitutional Rights (CCR) have been involved since 2002, representing clients in 9 of the 16 lawsuits related to civil rights post-9/11. Notably, CCR refers to their actions as “fighting for the Bill of Rights.”
In 2002, Lt. Col. Thomas Berg, who served as a military lawyer at Guantanamo Bay until August 2002, stated that those held in Guantanamo Bay are of little or no real intelligence value, and that those captured represent “the slowest on the battlefield.” Also, in early 2003, Alberto Mora, then Navy General Counsel, wrote a memo to the Navy Inspector General in support of detainee rights after learning of instances of abuse and possible torture in Guantanamo Bay. It was subsequently leaked to newspapers. However, the allegations of Berg and Mora produced neither sustained public outrage nor significant congressional action.
The public became more willing to hear the viewpoints of advocates and legal organizations starting in 2004. The Abu Ghraib scandal and detainee treatment in Guantanamo Bay became national news. In January 2004, the New York Times reported that the military had ordered an inquiry into detainee treatment at Abu Ghraib. Only months later, in November, a confidential memo from the International Committee of the Red Cross (ICRC) to the US government was leaked to reporters, in which the ICRC referred to the treatment of detainees at Guantanamo Bay as “tantamount to torture.” While some interests focused on the chipping away of rights in the name of increased security post-9/11, many human rights groups focused instead on allegations of torture. They favor increased transparency and habeas corpus rights for detainees as fail-safes against possible torture or mistreatment.
Congress and the Supreme Court took up the issue of detainee rights and habeas corpus in particular in 2005 and 2006 in light of these developments. However, this was only done following recent Supreme Court decisions, namely Hamdan and Rasul. In these cases, it found that the previous military commissions enacted via executive decision were unlawful under both US and international law and that detainees did have the right to seek habeas relief in US courts. Congress passed the Detainee Treatment Act (2005) and the Military Commissions Act (2006) in which it attempted to confer its imprimatur by providing a framework to address the legal treatment of detainees.
SPECIAL INTEREST GROUPS
The overwhelming majority of special interest groups organized around this issue favor increased rights, access, and transparency of detention practices in the Global War on Terror, especially for those held in Guantanamo Bay. Human Rights Watch, the International Committee of the Red Cross (ICRC), the American Civil Liberties Union (ACLU), and the Center for Constitutional Rights (CCR) are representative of this type of organization. Each may disagree about the specifics of the legal processes needed to fully address the current situation, but all are consistent in their distaste for the status quo.
Nearly all advocate the closure of Guantanamo Bay. These groups refer to the detention facility as a “legal black hole,” and find the lack of clear jurisdiction, lack of impartial oversight and legal procedures, and reports of torture and abuse of detainees to be problems only correctible by the shutdown of the entire facility. Most advocate for some combination of repatriation of select prisoners, and detention of the balance of prisoners on American soil with clear and well defined legal rules and procedures.
Their viewpoints have gained increased acceptance by the public following the scandals of Abu Ghraib, accusations of torture at Guantanamo Bay, and perception that we are losing in both Afghanistan and Iraq. Advocates frame the issue of habeas corpus for detainees in the larger context of increased concerns over human rights violations post-9/11. They view the deprivation of habeas corpus to detainees as taking place within the larger context of the chipping away of rights and intrusion into personal privacy in the name of security.
The American Civil Liberties Union (ACLU) entitles their campaign “Safe & Free,” implying that it is possible for one to be both safe from attacks (by terrorists) without relinquishing freedoms. The ACLU has also partnered with Amnesty International to launch a joint campaign entitled “Find Habeas.” In addition, Amnesty International, together with a group of torture survivors, held a “Funeral for Habeas Corpus” on October 17th, 2007 in Lafayette Park (adjacent to the White House) to mark the anniversary of the Military Commissions Act. However, actions such as these are directed at mobilizing a group’s existing supporters to pressure members of the US House and Senate than changing public perception and opinion.
GOVERNMENT
The larger issue of detainee rights, and specifically the ability to file for habeas corpus in US courts, has been and will likely continue to be a minefield for elected officials. Extreme positions on either side of the issue may result in a label of being a torturer on the one extreme, of aiding terrorists who murder innocent Americans on the other extreme. This issue is a highly politicized one, viewed by the public in the larger issues of civil rights vs. security in a post-9/11 environment. Congress in particular has been hesitant to act in regards detainees in the past, absent a perceived mandate from the Supreme Court to do something (as in Hamdan).
In addition, as public perception of failure in Iraq in particular, and the Global War on Terror in general, has grown, individual members of Congress have taken more moderate stands on detainees in Guantanamo Bay and US naval brigs. However, even moderate Republican Senators like Arlen Specter (R-PA) will vote for the Military Commissions Act despite having deep reservations about key clauses in the legislation to appease constituents fearful of another terrorist attack. Specter justified his vote by stating that he believed the provisions he disagreed with would be struck down by the Supreme Court for being unconstitutional, but that the remaining portions were workable.
CONCLUSION
Feared electoral retribution from constituents, especially in light of the upcoming presidential election cycle, have led to congressional reluctance to act substantively on this issue. While the public may fear government intrusion and erosion of basic legal rights, many citizens are still equally or more fearful of additional terrorist attacks. Candidates, especially presidential ones, cannot afford to be seen as weak on matters of national security. In addition, continued US military involvement in both Afghanistan and Iraq has created a hands-off approach by the public and Congress in regards military and intelligence gathering matters.
Further movement on this issue thus still appears to lie with the Supreme Court. In the past, the judiciary has given the executive branch wide latitude when dealing with security and military matters. However, decisions such as those in Hamdan and Rasul, in which the Supreme Court found fault with unilateral executive action in regards detainees, indicate a reversal of past practices. The Supreme Court’s willingness to even hear the cases of detainees points to an implied interest in oversight of the executive in these matters. The trend of judiciary involvement looks to only continue, given the Supreme Court’s announcement that it will hear an appeal for habeas corpus in Boumediene vs. Bush.