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July 18, 2004

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The battle royale over the prisoners at Guantanamo Bay

Ron Chepesiuk

Last June 28, the U.S. Supreme Court deliered a major legal blow to the Bush administration's strategy for prosecuting the War on Terrorism when it ruled in Rasul vs Bush that foreign terrorist suspects can use the American legal system to challenge their detention. In its 6-3 ruling, the Supreme Court rejected the Bush administration's claim that it could hold foreign detainees at Guantanamo Bay, Cuba, without judicial review. In ruling in favour of the plaintiffs, Justice John Paul Stevens, said, "The courts have traditionally been open to non resident aliens -- the fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court's jurisdiction over their non habeas claims."

Lawyers for the plaintiffs were elated. In an interview for The Daily Star, Judge John Gibbons, who argued the case for the Center for Constitutional Rights (CCR), the New York City-based non profit legal organisation that represented the plaintiffs in court, explained. "The lesson of the decision is that no person is beyond the reach of U.S. domestic law. The Supreme Court rejected the Bush administration's position that it could maintain a law-free zone in Guantanamo. This means our clients will be finally getting their day in court. The President does have absolute power in War on Terrorism." Gibbons is a former Chief Judge, for the U.S. Court of Appeals, Third Circuit.

But in the wake of the Supreme Court, the battle for justice for the Guantanamo Bay detainees is not over and it's unclear when they will have their day in court. The Bush administration has reached deep into its bag of tricks in the hope of at least stonewalling the judicial process and, at best, circumventing it. In interviews with lawyers from the CCR and with court documents they have shared, we get an inside look at the ongoing legal Battle Royale over the fate of the Guantanamo detainees, which has ensued for more than two years.

First some background. In February 2002, the CCR brought the first legal challenge to the Bush administration indefinite detention of foreign nationals at Guantanamo when it filed two habeas corpus petitions, Rasul vs Bush and Habib vs Bush. "After 9/11, no other legal organisation was willing to join us," recalled Barbara Olshansky, the CCR's Deputy Legal Director.

The petitioners argued that it was illegal to detain its clients (two British and two Australians) without a hearing to determine their legal status and the lawfulness of their detention.

The Bush administration has argued that the President, as the country's commander in chief, has the absolute right to designate suspected foreign fighters as enemy combatants. Moreover, he can detain them as long as necessary to keep them from re-entering the War on Terrorism and to give the government the time it needs to gather intelligence about possible future planned attacks. In a written brief, the U.S. government argued their case before the Washington, DC district court. For the courts to interfere with the U.S. government's War on Terrorism plans would create "a dangerous and unprecedented revolution in the separation of powers and undermine the ability of the U.S. military to protect citizens from attack," the Bush administration declared.

In the majority opinion for Rasul vs Bush, Justice Sandra Day O'Connor categorically rejected this argument. "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."

In making its case, the Bush administration relied heavily on the 1950 court ruling, Johnson vs Eisentrager, which ruled that U.S. courts lack jurisdiction over aliens detained outside of American sovereign territory. In the Eisentrager case, U.S. soldiers captured a group of German soldiers during World War II. They were spying for the Japanese in China after Germany surrendered. An U.S. military tribunal tried and convicted the Germans of violating the laws of war and then transferred them to Germany where they served their prison sentences. The U.S. courts rejected the argument of the prisoners' lawyers that their case be appealed and reviewed in the District of Columbia federal court.

The court dismissed the CCR's petition in August 7, 2002, but the organisation appealed to the District of Columbia Court of Appeals, arguing that "if the United States courts do not have jurisdiction to review the executive decisions at Guantanamo, then no court has jurisdiction to review them. That would mean the U.S. could act lawlessly with respect to its conduct."

But on March 11, 2003, the DC court rejected the appeal. The decision surprised the CCR. "Every person has a right to his day in court," said Michael Ratner, the CCR's president. "That [principle] is at the heart of our legal system."

On September 2, 2003, the CCR filed another petition to the Supreme Court asking for a review of the lower court's decision. On November 10, 2003, the Supreme Court, over the Bush administration's strong objections, agreed to review the lower court's decision.

Given the significance of Rasul vs Bush, several individuals and organisations from a variety of backgrounds filed amicus (friends of the court) briefs with the court in support of the CCR's case. They include the British House of Lords, retired U.S. generals, former American POWs, military lawyers and religious groups like the National Council of Churches. The Reverend Dr. Robert W. Edgar, General Secretary of the National Council of Churches, told The Daily Star that Rasul vs Bush shows the "greatness" of U.S democracy. "We have three powers in the U.S. [the executive, judiciary and legislature], and they must operate under a system of checks and balances." Edgar explained in an interview. "The U.S. system limits power in the U.S. Even moderate and conservative politicians agree that the usurping of power by the [Bush] administration was excessive in this case."

Since the filing their writes of habeas corpus on behalf of the four Guantanamo detainees, the British Shafiq Rasul and Asif Iqbal, have been freed, while the two Australians, David Hicks and Mandouh Habib, remain at Guantanamo. In all, the U.S. has released about 140 prisoners, according to the CCR. "The Supreme Court has brought the prisoners at Guantanamo within the protection of U.S. law," Ratner said.

That's the background and now for an inside look at the current situation.

The Centre for Constitutional Rights is currently putting in place a framework that will roll out the Supreme Court's mandate for speedy justice for the detainees. Last July 2, it filed five habeas corpus petitions in Washington, D.C., federal court on behalf of nine of the Guantanamo detainees it represents.

"We are bringing the petitions to court to test the legality of the detentions," Ratner explained. "We want access to our clients now. We want to get information about their mental and physical health. Have they been treated humanely?"

Besides pushing for immediate access to the detainees, the CCR is asking the court to stop the U.S. government from using coercive interrogation techniques on their clients and to award damages to them. In the language of the petitions, the court should "order the detained petitioners released from the Respondent's unlawful custody" and "order Respondents to cease interrogations of the detained petitioners, direct or indirect, while this litigation is pending."

The petitions further contend that the Bush administration has "exceeded the constitutional authority of the Executive and has violated and continues to violate the War Powers Clause by ordering the prolonged and indefinite detention of the Detained parties without congressional authorisation."

The CCR currently represents 53 individuals who have been held at Guantanamo Bay for more than two years. The five petitions represent nine detainees and are grouped generally by the detainee's nationality. They include a Turkish citizen with German residency who was seized in Pakistan, two French citizens seized in Pakistan, two refugees (a Palestinian and an Iraqi) residing in England who were seized in Gambia, a Canadian citizen who was 15 when seized in Afghanistan and two British citizens (unclear where they were seized). The CCP expects to file more petitions in the coming days, with the goal of eventually covering all of its 150 clients.

"In ruling for the majority [in Rasul vs Bush], Justice Sandra Day O'Connor was very clear in narrowing the definition of 'enemy combatant'to someone who had fought in Afghanistan," Ratner explained. "So a big question in a number of the Guantanamo cases is: Do they fit the definition of 'enemy combatant'?"

On July 1, the CCR faxed a letter to Secretary of Defense Donald Rumsfeld demanding access to their clients. In the letter, the CCR said it was ready to "organise a delegation of attorneys" to provide legal counsel to the detainees. As of July 10, the CCR hasn't received a response.

"Without access to a lawyer," explained CCR legal director, Jeff Fogel, in the faxed letter, "The Supreme Court decision [Rasul vs Bush] would be meaningless. The right to habeas corpus has also included the right to legal assistance."

Ratner revealed that a number of large law firms have now joined the CCR's legal battle with the Bush administration, including the Boston-based Hale and Dorr, the Washington D.C. based Keller and Hechman, and the British based Clifford Chance law firms. "We are a small organisation and it would be difficult to handle all the cases by ourselves," Ratner revealed. "The fact that these big and prominent law firms are coming aboard shows that the tide of the Guantanamo detainees has turned."

Meanwhile, the Bush administration has not given up the fight. It has moved ahead with a new strategy to ensure that the Guantanamo detainees won't have the opportunity to see their lawyers or the inside of an U.S. courtroom. The U.S. Department of Defence (DOD) has announced that it setting up so-called Combatant Status Review Tribunals to review the continued detention of individuals at Guantanamo Bay.

Under the DOD plan, the detainees would not be allowed any legal assistance.

Instead, they would get what the Bush administration is calling a "personal representative," whose job it would be to explain the legal process to the detainees and to help them gather evidence.

The CCR objects to the plan for a number of reasons: The tribunals don't appear to bar the use of coerced confessions and it does not appear that communication between the detainee and his "personal representative" will be protected by any kind of confidentiality.

The move has dismayed and angered lawyers for the Guatanamo prisoners. "With all that we've learned in the past few months about the mistreatment and torture of prisoners in U.S. custody, it's now more important than ever to ensure that coerced statements are not relied upon to curtail an individual's freedom," Olshansky said.

The CCR contends that coercive techniques, solitary confinement and three months of intense interrogations forced two of their clients, Shafiq Rasul and Asif Aqbal, to falsely confess that they had met Osama Bin Laden. "The interrogators at Guantanamo Bay showed Rasul and Aqbal a video, ostensibly of them with Osama," Ratner recalled. "Our clients denied again and again that they were in the video, but the interrogators kept persisting. Finally, after three months, our clients told them what they wanted to hear. Later, however, the British proved that the Rasul and Aqbal were in the United Kingdom at the time the video was made."

The 27-year old Shafiq Rasul was born in small town in England's West Midlands. He travelled to Pakistan for a wedding in August 2002. Then in January 2002, Rasul's family received a call from the British Foreign Office, informing members that he was being detained at Guantanamo. The U.S. released Rasul to the custody of the British government on March 9, 2004. Shortly after returning to the United Kingdom, he was released without charge.

Asif Iqbal, age 23, is also from a small town in England's West Midlands. In August 2002, he travelled to Pakistan to get married, but in January 2002 the British Foreign Office informed Iqbal's family that he was being held at Guantanamo. He was released from there on March 9, 2004, and returned to the United Kingdom where he was released without charge.

Rasul and Iqbal are free, but despite the U.S. Supreme Court ruling, the remaining Guantanamo detainees are still looking for justice American style. "We don't know when we will get access to our clients," Ratner conceded. "It could take a couple of weeks, maybe several weeks, or we might have to litigate through the rest of the summer."

Still he remains optimistic. "We have a lot of weight on our side - a major Supreme Court ruling, big law firms that have joined us. The government is really scrambling now. We feel it's just a matter of time."

Daily Star columnist Ron Chepesiuk is a Visiting Professor of Journalism at Chittagong University and a Research Associate with the National Defence College in Dhaka.

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