Habeas Corpus Extends to Gitmo

Bush may or may not close Gitmo, but Congress still needs to ensure anyone can challenge their confinement in court, says Ken Gude.

The recent “will they or won’t they” speculation about whether the Bush administration intends to close the prison camp for accused terrorist detainees at Guantanamo Bay comes after several reversals in the courts and following damaging revelations by key U.S. military lawyers from inside Gitmo—all of which appear to have strengthened the hand of those within the Bush administration who want to close the Gitmo detainee camp, among them Secretary of Defense William Gates, Secretary of State Condolezza Rice, and National Security Advisor Stephen Hadley.

But lost amid all the speculation are the serious steps taken by Congress to bring U.S. detainee policy back in line with American tradition and values by restoring habeas corpus rights to these detainees. Habeas corpus, or the Great Writ, dates back to the signing of the Magna Carta in 1215 and has been a fundamental part of free and open societies for centuries. It allows any imprisoned person to challenge in court the legality of their confinement.

Members of Congress in both chambers and on both sides of the aisle are now working to roll back some of the most distasteful aspects of one the worst laws to come out of Congress in many years: the 2006 Military Commissions Act. The MCA was itself a response to a Supreme Court decision that the Bush administration’s plan for trials of Guantanamo detainees before military commissions was unlawful. Bizarrely, rather than fix the procedures, the outgoing 109th Congress chose last year to strip the courts of jurisdiction to hear further challenges and severely limited the habeas rights of Guantanamo detainees.

The new 110th Congress views habeas corpus very differently. Senate Judiciary Committee Chairman Pat Leahy (D-VT) and Ranking Member Arlen Specter (R-{PA) moved legislation through their committee in early June to restore habeas corpus rights to the detainees at Guantanamo. And last week, House Armed Services Committee Chairman Ike Skelton (D-MO) and House Judiciary Committee Chairman John Conyers (D-MI) announced that they have joined forces with Reps. Walter Jones (R-NC) and Roscoe Bartlett (R-MD) and 26 other co-sponsors to introduce bipartisan legislation that would also restore habeas rights.

Conyers’ Judiciary Committee will hold a hearing Tuesday on habeas corpus in the wake of a sworn statement submitted to a U.S. appeals court last week from Lt. Col. Stephen Abraham, an Army lawyer and former member of a military panel designed to determine if Guantanamo detainees are enemy combatants, known as a Combatant Status Review Tribunal, or CSRT. Abraham told the court that the CSRTs are “fundamentally flawed.”

Abraham went on to say that legal standards in the CSRTs were nonexistent, information provided by the government was not credible, and exculpatory evidence was unavailable and possibly withheld. He added there was significant pressure on the CSRTs from senior military commanders to concur with the government’s original assessment and find detainees to be enemy combatants.

The writ of habeas corpus exists to protect everyone from unlawful imprisonment regardless of the alleged crime. Convicted murderers and drug kingpins, even terrorists as dangerous as Ramzi Yousef—the convicted mastermind of the 1993 World Trade Center bombing—are afforded habeas rights. Yousef is as dangerous as anyone at Guantanamo, yet there is no outcry to limit his habeas rights because any challenge he might make to his detention would be frivolous as he was tried and convicted in federal court under rules and procedures that have been developed and refined for more than 200 years.

As Lt. Col. Abraham’s sworn statement makes clear, the procedures the Bush administration made up are neither fair nor objective. The administration has been stumbling and bumbling around for more than five years and still can’t get it right—there have been more suicides at Guantanamo than convictions.

Ask yourself if you trust these guys to finally figure it out and close Guantanamo and use established U.S. civil and military courts. This Congress is right to step in to restore habeas corpus. This Congress must step in to preserve American values and freedoms.

Ken Gude is the Associate Director of the International Rights and Responsibility Program at the Center for American Progress.

To read more on the Center’s position on habeas corpus and the detainees at Guantanamo Bay please see:

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.


Ken Gude

Senior Fellow