Behind the US Supreme Court's decision to uphold the right of habeas corpus for detainees at Guantanamo lurks the disquiet of the justices with practices at both Guantanamo and Abu Ghraib, writes Ahmed Naguib Roushdy* The American wars against Afghanistan and Iraq will take their place in history, just like their predecessors in Vietnam, Korea and the two world wars. But while historians will take decades to gather information and collect data from classified and unclassified documents before reaching a verdict, Iraq and Afghanistan's victims of torture and mistreatment are crying out for a justice that cannot wait. When the Abu Ghraib scandal first broke the Bush administration moved to distance itself from the incidents of torture and mistreatment so graphically illustrated. Such horrific incidents were, it said, against American traditions. The administration could never condone such atrocities, it said, insisting that the acts were limited to one block in one prison. Those responsible for any abuse, said Washington, would be held to account regardless of rank. The Geneva Conventions would be respected, and the rights of prisoners protected. None of the above turned out to be true. Following the announcement of the Supreme Court's decision on 28 June, 2004 on four cases brought by prisoners held at Guantanamo Bay, it was widely reported in the media that the torture and abuse of prisoners at Guantanamo preceded the incidents at Abu Ghraib. Violations of the Geneva Conventions and infringement of the rights of prisoners were systematic at Guantanamo, from where they were exported to Abu Ghraib and other prisons in Iraq and Afghanistan. Reports appearing towards the end of 2004 and in early January 2005 confirmed that torture and other violations of the Geneva Conventions were continuing, both at Guantanamo and in prisons in Iraq. Only a handful of US military personnel have been put on trial, and then from the lowest ranks. Yet there is mounting evidence that violations of the Geneva Conventions, and of US law, were approved at the highest levels of the administration. The New York Times of 13 January 2005 reported that the lawyers of American Specialist Charles Garner, the ringleader of the American soldiers responsible for the torture of Iraqi prisoners at Abu Ghraib, had claimed in his defence that he was simply following orders. (Garner was eventually found guilty of all counts and sentenced to ten years in prison). The defence claim was just one more piece in the jigsaw of evidence suggesting that lawyers at the Defence and Justice Departments, and the White House Legal Counsel, regard the Geneva Conventions as little more than an antiquated nuisance. It is Guantanamo, though, that is likely to be remembered as the place from which prisoners submitted their cases to the US Supreme Court, daring to challenge their illegal detention and securing landmark judgements from the Supreme Court upholding international obligations and vindicating the concerns of human rights advocates. Around 640 foreign prisoners captured in Afghanistan were detained at Guantanamo. The majority appears to have been engaged in no illegal activity, and none of the prisoners has been shown to be an important member of Al-Qaeda. Media reports reveal they are held in cells unsuitable for human habitation, and that many have been subjected to torture and other forms of abuse. Held without charge, they have been prevented from consulting with lawyers and both the International Red Cross and prisoners' families have been denied access. The Supreme Court has so far issued judgements in four cases, all appealing decisions of the Federal Court of Appeal. The court's rulings are contained in 200 pages, and include the opinions of dissenting judges. The four cases submitted to the Supreme Court, and to the lower courts before that, are principally based on the procedure of habeas corpus, a petition that allows detainees to challenge the government to justify their detention in violation of due legal process. The procedure, which originated in ancient Roman civil and criminal law, was incorporated in English common law and by the time the American colonies gained independence had become established in North America. The first article of the US constitution forbids suspension of the privilege of the writ of habeas corpus except "in Cases of Rebellion or Invasion, as the public Safety may require". The judicial act of 24 September, 1789 -- enshrined in the law of 1867 _ allows federal courts jurisdiction to issue an order in habeas corpus writs submitted by any one complaining of being detained and denied his or her basic rights in violation of the requirements of due legal process guaranteed by the Constitution (the Fifth Amendment) and the laws of the United States, or treaties to which the United States is party. Suspension of that writ can only be by an act of Congress. The procedure is not concerned with determining the guilt or innocence of the detained -- that is the prerogative of whichever competent court. The core of the procedure is the claim that the detainee has been denied the due process of law, i.e. the necessary judicial guarantees. The federal court, in such actions, can issue an order to the person responsible for the detention to justify his or her actions. According to Supreme Court precedents an essential principle of due process is that deprivation of life, liberty or property must be preceded by notice and by the opportunity for a hearing appropriate to the nature of the case. Regarding liberty, which is the issue here, due legal process prohibits detention for an indefinite period and requires that the detainee face specific charges. The detained must, in addition, be allowed to consult with a lawyer of his choice. The government is, furthermore, required to present the case to a neutral judge in the first instance. The violation of these principles formed the subject of complaints in the four cases brought so far. The cases are similar in as much as the detainees were all arrested following 11 September 2001, during military operations in Afghanistan or in the US during the course of the US government's pursuit of Al-Qaeda operatives. The prisoners were all detained for a period of more than two years either at the American base in Guantanamo Bay or in the US Navy base in Charleston, South Carolina. As soon as they were captured they were subjected to interrogation. They were held incognito for a long period of time and prevented from consulting lawyers. They were not charged with any crime and their cases were not submitted to a neutral court. They were denied visits by the Red Cross and their families. In two cases the detainees were American citizens. Both were held in solitary confinement at the US naval base in Charleston, South Carolina. One, Yasser Hamdi, of Saudi descent, was captured by the forces of the Afghani Northern Alliance, who then delivered their prisoner to US troops. He was initially detained in Guantanamo though when it was discovered he was an American citizen he was moved to the Naval brig in Charleston, South Carolina. A second detainee, Jose Padilla, a new convert to Islam, was arrested in Chicago after returning to the US from Pakistan. The government alleged that he was planning with Al-Qaeda to detonate a dirty bomb. Upon legal opinion from the justice and the defence departments, President Bush ordered the secretary of defense to designate both prisoners as enemy combatants. He did, but then ignored their rights under the Geneva Conventions and due process of law. Based on their designation as enemy combatants the Defence Department decided to detain them indefinitely in the military prison at the naval base in Charleston, South Carolina. Both Hamdi and Padilla filed separate petitions of habeas corpus at federal courts, complaining they had been denied the right of due legal process and challenging their status as enemy combatants. Regarding Hamdi, the court of first instance ruled that he had been illegally detained and ordered the government to grant him access to the right of due process. The government took the case to the Court of Appeal which overturned the earlier judgement. "If Hamdi was indeed an enemy combatant who was captured during hostilities in Afghanistan the government's present detention of him is a lawful one," the court ruled, agreeing with the government's contention that the president had constitutionally detained Hamdi, pursuant to the president's war powers with the aim of preventing him from rejoining the enemy. The Court of Appeal agreed that Hamdi, as a US citizen, was entitled to a limited judicial inquiry into his detention but only to determine its legality under the war powers assumed by the president. The court found that Hamdi's undisputed presence in the war zone disqualified him from any review of the facts surrounding his seizure in Afghanistan. It was against this decision that Hamdi appealed to the Supreme Court in the form of a writ of habeas corpus. The Supreme Court ruled that the guarantees under due process were "(e)ssential constitutional promises" and could not be eroded, judging that in the absence of any suspension of the writ by Congress a citizen detained as an enemy combatant was entitled to the due process of law. Although the Supreme Court recognised that Hamdi was entitled to challenge his classification as an enemy combatant under the Geneva Conventions it concluded in a footnote, on page 27 of its decision, that it was not incumbent on the court to determine whether any treaty guaranteed Hamdi access to a tribunal to determine his status. The court, furthermore, rejected government argument's that the war on terror did not fall under the provisions of the Conventions. It noted that the Geneva Conventions permitted prisoners of war to be detained as long as the war continued and, recognising the fact that wars must come to an end, questioned the government's intention to continue the war on terror indefinitely. With the Padilla case it was the government that had appealed to the Supreme Court against the Court of Appeal ruling that Padilla's detention was in violation of the due process of law. The Supreme Court, though it did not deny Padilla the right to challenge his status as an enemy combatant before American courts, did not rule on the issue, agreeing with the government's contention that the Federal Court of New York had been incompetent to pass judgement and that Padilla should have presented his habeas corpus writ to the court in South Carolina, the location of the prison in which he was detained. The Supreme Court, accordingly, instructed Padilla to file his writ before the competent court. The third and the fourth appeals were those of Shafiq Rasul and Fawzi Khaled Abdullah Fahad Al-Odeh, though in both cases the names of other detainees were subsequently added to the original writs. Rasul, and a second detainee named in his petition, are British citizens. Odeh, and 11 of his fellow petitioners, are from Kuwait. They were joined by two Australian citizens. All had been detained at Guantanamo. The two cases, the Supreme Court contended, involved determining whether US courts possessed the jurisdiction to consider challenges to the detention of foreigners captured abroad in connection with hostilities and detained at the US naval base in Guantanamo Bay, Cuba. The government's main argument was that the petitioners were of foreign nationality and captured while they were fighting against the US in Afghanistan. Because Guantanamo Bay was under the sovereignty of Cuba the government argued that the jurisdiction of United States courts did not apply. The Supreme Court rejected the government's argument and ruled that the petitioners had the right to the writ of habeas corpus, since: 1. They denied that they had engaged in or plotted acts of aggression against the United States, a matter that must be decided by a court of law; 2. They had never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; 3 For more than two years they had been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Supreme Court ruled that since the United States had exclusive and absolute control over and within the base, then US federal courts could extend their jurisdiction to that base. In each of the four cases the Supreme Court refused the government's interpretation of both the Constitution and the Geneva Conventions, and from its rulings the following principles can be drawn. 1. Resort to US courts is a constitutional right of all American citizens and of those resident in the US. It includes guarantees of due process, the right to consult a lawyer and to be charged with specific acts, and no distinctions can be made on the grounds that the prisoner was captured on foreign territory, whether during military operations or not, or because of the location of the prison in which the detainee is held; 2. The writ of habeas corpus is a privilege that cannot be suspended, except in time of rebellion, and then only by an act of Congress. The writ was established to prevent government infringement of the constitutional right to due process of law. All prisoners, US citizens and foreigners, have the right to this writ; 3. The Geneva Conventions of 1949 apply to all kind of wars, including the war on terror. Detaining prisoners indefinitely is sanctioned by neither the Constitution nor the laws of the United States; 4. The president does not have a blank cheque to infringe on the liberties or constitutional rights of individuals during peace or war. Indefinite administrative detention is unconstitutional and the separation of powers does not suspend the right of federal courts to review government acts. The Supreme Court had the chance to once again demonstrate the principles of democracy on which the American republic was founded. And I have no doubt that events at Abu Ghraib weighed heavily on the justices of the Supreme Court as the majority reaffirmed constitutional and international principles, though the court itself could only examine the facts presented to it. The Supreme Court applied the rules correctly, though it is impossible to escape the feeling that behind their decisions lay the spectre of what had happened at Abu Ghraib and Guantanamo, neither of which, of course, formed part of the proceedings. * The writer is an Egyptian lawyer based in Cairo and New York.
