THE HANDSTAND | JANUARY 2008 |
Monday 03 December 2007 "We have important news for you!" Chained to the floor of a cell in Camp Six, Guantanamo, Joseph said nothing. But he had some news for us, too. The Court of Appeals had decided what record - what pieces of paper - it would examine when it considered his "Detainee Treatment Act" case. This was big. For months, we urged the Bush administration to release its exculpatory evidence about Joseph. The administration fought back hard. And we'd won - a brilliant victory! "What do they say - these papers?" Joseph asked. An awkward pause followed. We didn't exactly have them yet. The government had moved for reconsideration, filed affidavits, more briefs. There might be further appeals. It was complicated. The order came down in July, and now it was October. They hadn't produced a page. But it was a great victory! Joseph listened in silence. During six years of US imprisonment he's heard this sort of thing before. All this talk from American lawyers about American courts - in Camp Six a man can't be sure that American courts exist at all, but if they do, it is certain that nothing ever comes of them but essays. No one alleges that Joseph was ever a terrorist, or a soldier, or a criminal. The military told him in 2002 he was innocent. Again in 2003. Again in 2006. He filed a habeas petition in 2005. He would be gone if the military could find a country to take him. When Senator Joseph Lieberman and the other guardians of freedom in Congress stripped his habeas rights, he filed a Detainee Treatment Act petition. That was 11 months ago. For two years and three months he'd been asking the federal judiciary to hear a few simple facts. No judge ever has. "I also have something important to tell you," Joseph said. "About my wife." What came next was deeply personal. (It is why I use "Joseph," a pseudonym for this good husband.) A Muslim, he does not like to speak to me of such personal things. But he had no choice. Camp Six is complete isolation. The men call it the dungeon above the ground. He is held alone in a metal cell, denied any contact with companions, books, news, the world - with his wife or child. North Korea used this isolation technique against our airmen in 1952. We know a good idea when we see it, so the taxpayers paid $30 million to Dick Cheney's former company to duplicate North Korea. The bunks had to be filled. Joseph got one. And so a message through me was the only way he could do his duty by her. "I want you to tell her that it is time for her .... to move on." "You mean ...?" "Yes. I will never leave Guantanamo." His affect was flat, his voice soft. He looked up only once, when he said to me, urgently, "She must understand I am not abandoning her. That I love her. But she must move on with her life. She is getting older." We are all getting older. Guantanamo is now far older than any World-War-II POW camp. Hope fled the sunless gloom of Camp Six long ago. Joseph slips with the others down isolation's slope. He stands in the twilight. Beyond, the darkness of insanity beckons. He seems ready to surrender to it. Somewhere in a file drawer in Guantanamo is a copy of the memo that clears Joseph for release. But it was written in 2006, and is as forgotten as he is. So the good husband did the last thing a man in isolation can do. He set his wife free from her husband's prison. Not to worry, Joseph! Our federal judges are at their posts......They are making important rulings in your case - earnestly debating the important question of which pieces of paper to look at...... -------- Sabin Willett is a partner at Bingham McCutchen, which represents prisoners at the Guantanamo prison. Supreme Court
showdown on detainees The US Supreme Court is holding a hearing on Wednesday in two cases that are being seen as a legal showdown over the Guantanamo Bay detention camp in Cuba. The cases challenge the removal by an act of Congress of the prisoners' right of habeas corpus to take their cases to US civilian courts. If the court rules in favour of the prisoners, indefinite detention under military control at Guantanamo Bay could be declared unlawful. The prisoners whose names have gone forward in these test cases are Lakhdar Boumediene and Fawzi al-Odah. The first is an Algerian turned Bosnian who went to Bosnia during the civil war and stayed on. He was arrested on suspicion of planning an attack on the US embassy there but was released and then, according to his lawyers, grabbed by US agents and secretly flown to Guantanamo Bay. The second is a teacher from Kuwait who was picked up in Pakistan. A 17th Century example However another, more ghostly, figure will also feature in the case. This is Edward Hyde, Earl of Clarendon, who was one of Charles II's henchmen after the restoration of the monarchy in England in the 17th Century. Briefs for both sides in the Supreme Court hearing mention his activities. Clarendon set up his own Guantanamo Bay, believed to have been in Jersey, in the hope that his prisoners could be kept away from the courts and in particular from the right of habeas corpus. This is an ancient procedure in which a court can order someone holding a prisoner to bring him or her to court to justify the detention. In the end, he failed and was himself impeached before fleeing abroad. The administration had hoped, too, that, by choosing a remote location in Cuba, it would avoid the scrutiny of American courts. However, in an important case called Rasul v Bush in 2004, the Supreme Court held that prisoners, even though foreign and even though in a far away place, could petition US courts under habeas corpus. So to try to get around this, in 2006 the administration proposed, and Congress passed, the Military Commissions Act (MCA). This removed the habeas corpus right. And it is this Act which is being challenged in the Supreme Court. Arguments for the prisoners Lawyers for the petitioners (that is the prisoners) argue in their brief: "The Founders of our nation created a Constitution dedicated to the protection of liberty, not one that turns a blind eye to indefinite detention without a meaningful opportunity to be heard." They say that habeas corpus does extend to Guantanamo Bay because, even though the territory is not under formal US sovereignty, it is under US control. "The MCA's purported repeal of habeas is unconstitutional," they argue. Arguments for the government US government lawyers under the solicitor general, who argues government cases in the court, have responded by saying in their brief that the US does not own Guantanamo Bay and therefore the writ of habeas corpus does not run there. "As aliens held outside the sovereign territory of the United States, petitioners do not enjoy any rights [under the habeas corpus clause of the US constitution]," they state. The government further argues: "The Military Commissions Act of 2006 validly divested the District Court of jurisdiction over petitioners' habeas corpus petitions." Dazzling display The arguments will be heard in a one-hour session during which the justices of the Supreme Court pepper and interrupt the lawyers with questions designed to test them and trip them up. It is often a dazzlingly learned hearing and the lawyers for both sides have to be wary of making mistakes and of being found ignorant and wanting. The court then issues its ruling some months later. In this case, the stakes are higher than usual - the future of Guantanamo Bay.
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