Global Policy Forum

Legal Action by Inmates Could Close Guantanamo


Robert Verkaik

December 6, 2007

More than 300 terror suspects still held at Guantanamo Bay began a legal battle yesterday to have their cases heard before a civilian court, in a test case that could bring about the closure of the infamous detention camp.

Lawyers and human rights groups argue that if US judges rule in favour of the inmates, the Bush administration will be forced to end the controversial regime imposed at the American naval base in Cuba, opened in 2002 to house "enemy combatants" captured during the US-led invasion of Afghanistan. Two test cases before the US Supreme Court challenge the removal by the US Congress of the "habeas corpus" right of detainees under the US constitution to go before a civilian court.

Seth Waxman, a former US government lawyer who is now representing the detainees, told the judges that many of the men had been held for six years without an opportunity to have the allegations against them tested in a US court. He said: "If our law doesn't apply, this is a law-free zone." But Mr Waxman was asked by the court to provide evidence from American history of circumstances similar to those at Guantanamo Bay where a foreign prisoner was allowed to challenge his detention in the civilian courts.

Solicitor General Paul Clement, representing the US government, said foreigners captured and held outside the United States "have no constitutional rights to petition our courts for a writ of habeas corpus", a judicial determination of the legality of detention. There has been growing concern about the mental health of many of the detainees, four of whom have committed suicide in the last 18 months. Yesterday it emerged that another detainee had slit his throat with a sharpened fingernail, causing substantial bleeding.

This is the third time since 2004 that the Supreme Court has been asked to review the legal status of the detainees being held at Guantanamo Bay. On both previous occassions the court ruled in favour of the government. But lawyers for the foreign detainees argue that the courts have a constitutional responsibility to act as check on the government, which they claim has acted unlawfully in denying the detainees the right to a fair trial. The US administration changed the law to keep the detainee cases out of US courts following earlier Supreme Court rulings. The most recent legislation, last year's Military Commissions Act, strips federal courts of their ability to hear detainee cases. Before the start of the case, Mr Waxman said: "After six years of imprisonment without meaningful review, it is time for a court to decide the legality of their confinement."

The case could turn on whether the court decides that Guantanamo is on US soil, which would make the case for detainee rights stronger. In 2004, the judges found that existing law gave federal courts the right to consider challenges to the legality of the detention of foreign nationals held at Guantanamo Bay because of the unique control the US government had over the land leased from Cuba. Two years later, it ruled that President Bush did not have the authority to order the "enemy combatants" there to face military commissions. The government responded both times by obtaining Congressional legislation restricting judicial review of the detentions.

The Military Commissions Act (MCA) passed in 2006 removed the right of habeas corpus and set up commissions to try detainees who were not US citizens. Over the lifetime of the detention inmates, human-rights groups and federal law-enforcement officials have described abusive interrogation and treatment at the prison. The US Defense Department says it treats the inmates humanely. The case is not expected to concluded until next summer by which time many of the inmates will be into their seventh year of detention.

Amnesty International UK Guantanamo campaigner Sara Mac Neice said: "This is a crucial moment for human rights and the rule of law. Indeed, the questions pending before the Supreme Court go beyond the rights of detainees through to the very concepts of accountable government." She added: "With the US courts effectively removed from their role as an independent check on executive action, the past six years have seen a litany of abuse - from secret detainee transfers, arbitrary detentions, torture, cruel treatment and unfair trial procedures, through to the international crimes of torture and enforced disappearance. Guantanamo has been a core part of this unlawful detention regime. Habeas corpus is not a technical nicety; it is a basic safeguard against government abuse. Restoring this safeguard in full and for all detainees is long overdue."

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