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Attorneys Ask Supreme Court to Restore the Right to Habeas Corpus for Guantanamo Prisoners

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On Wednesday, attorneys for prisoners at Guantanamo called on the Supreme Court to restore the Constitution and grant the prisoners habeas corpus — the right to challenge their imprisonment before a judge. “All have been confined at Guantanamo for almost six years, yet not one has had meaningful notice of the factual grounds of their detention,” said former Solicitor General Seth Waxman in his oral arguments. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re broadcasting from Washington, D.C., where the Supreme Court heard arguments Wednesday in a case challenging the Bush administration’s jailing of hundreds of Guantanamo prisoners without charge or trial. At issue is an appeals court ruling denying prisoners the writ of habeas corpus—the right to challenge their imprisonment before a judge. Lawyers for the prisoners argue the ruling is unconstitutional and the Bush administration’s military tribunal system, an inadequate alternative.

The session marked the third time since 2004 the Supreme Court took up a challenge to Guantanamo detentions. The court ruled against the Bush administration both previous times. In 2004, the court said federal courts have jurisdiction over cases filed from Guantanamo. Two years later, the court struck down the Bush administration’s initial military tribunal system for trying selected prisoners. That decision led to the establishment of a new tribunal system endorsed by Congress just over a year ago.

Representing the prisoners was Seth Waxman, the former Solicitor General under President Bill Clinton. In his opening statement, Waxman said Guantanamo prisoners are being denied their basic legal rights.

    SETH WAXMAN: The Petitioners in these cases have three things in common. First, all have been confined at Guantanamo for almost six years, yet not one has ever had meaningful notice of the factual grounds of detention or a fair opportunity to dispute those grounds before a neutral decision-maker. Two, under the decision below, they have no prospect of getting that opportunity. And three, each maintains, as this court explained in Rasul, that he is, quote, “innocent of all wrongdoing.”

    Now, the government contends that these men are detainable, and the facts of these thirty-seven cases differ, and it may well that be that an adjudicatory process that preserves the core features of common law habeas would reveal perhaps that some of these petitioners are lawfully detainable. But limited DTA review of the structurally flawed CSRT process cannot provide any reliable examination of the executive’s asserted basis for detaining these petitioners, let alone an adequate substitute for traditional habeas review.

AMY GOODMAN: For more on the Supreme Court hearing, I am joined by Vincent Warren. He is executive director of the Center for Constitutional Rights, the group representing Guantanamo prisoners. Welcome to Democracy Now!, Vince.

VINCENT WARREN: Thank you, Amy. It’s great to be here.

AMY GOODMAN: Explain the significance of the case yesterday and the questioning, the line of questioning of the Supreme Court justices.

VINCENT WARREN: Well, the significance of the case is that the Supreme Court is really going to figure out whether in this country we have a king that’s not bound by the rule of law and someone who can lock people up indefinitely for the rest of their lives perhaps just on his say-so alone, or whether we have a president that is bound by the rule of law and by the Constitution.

The issue here was that the President and the Congress had said that there was no habeas corpus that extended — constitutional habeas corpus that extended to the detainees. Our argument was that the Constitution says habeas corpus shall not be suspended, and therefore, by not extending habeas to the detainees, that that’s exactly what the President and Congress did.

The next step is, if the Supreme Court agrees with that, which we’re thinking they’re likely to do, the next question is whether the procedures that were passed by the Detainee Treatment Act are an adequate substitute for habeas corpus. And, of course, we’re saying that they’re not, because it’s essentially a sham kangaroo court and a court review that only asks the question of whether the military complied with its own procedures, and it’s not a meaningful review of the military proceedings whatsoever.

AMY GOODMAN: Prisoner attorney Seth Waxman also cited the case of Murat Kurnaz, who was held for more than four years, despite US acknowledgment of his innocence. Declassified documents show the military tribunal overseeing Kurnaz’s case ignored explicit evidence showing US intelligence had exonerated him. During his imprisonment, Kurnaz says he suffered severe torture. He was finally released in August 2006, nearly five years after his capture. In his closing arguments, Waxman said Kurnaz was able to go free because he was granted the rare privilege of an attorney.

    SETH WAXMAN: Mr. Kurnaz is the other petitioner who is discussed in her brief. He was a petitioner in this court, but he has since been released by the government because the fact that he had what the CSRTs won’t give him, which is a lawyer. He was told, two years after he was detained — he’s a German permanent resident — he was told at his CSRT, as many of these individuals were not, that he was being held because he associated with a known terrorist. And he was told the name. He was told that he associated with somebody called Selcuk Bilgin, who, the government contended, was (a) a terrorist, who was — had blown himself up while Mr. Kurnaz was in detention — may I simply finish this account — while he was in detention and in a suicide bombing. And all that Mr. Kurnaz could say at his CSRT, where he had no lawyer and had no access to information, was, “I never had any reason to suspect he was a terrorist.”

    Well, when the government, in the habeas proceedings, filed its factual return in Judge Green’s court, it filed as its factual return the CSRT record. His counsel saw that accusation. Within twenty-four hours, his counsel had affidavits not only from the German prosecutor, but from the supposedly deceased Mr. Bilgin, who is a resident of Dresden, never involved in terrorism and fully getting on with his life. That’s what — and that evidence would not have been allowed in under DTA review. It wouldn’t have been in the CSRT, and it won’t come in under DTA review. And that’s why it’s inadequate.

AMY GOODMAN: That was Seth Waxman, the former Solicitor General under President Clinton. He was making the oral arguments on behalf of the prisoners. Vince Warren, our guest, executive director of the Center for Constitutional Rights. The importance of this argument, Vince?

VINCENT WARREN: It’s critically important, because that piece of the argument shows precisely why habeas corpus — and that is a proceeding in which you have a lawyer, where you have counsel, where you can present evidence on your own behalf, where you learn the details of the evidence against you — that is why what we’re fighting for is so critically important, because besides being able to determine issues of being in the wrong place at the wrong time, when the government says that there is a terrorist that you’re known to have associated with and who is dead now, and you’re in a proceeding where you don’t have that information and you can’t follow up on it, you don’t have the ability to say, “My goodness! This person is not dead, and he’s not a terrorist,” and that person can be the basis for your release. When the government says —- accuses you of something that is simply not true, the basic tenet of our justice system is for you to have an opportunity to challenge that. And that’s what’s missing from the kangaroo court proceedings that the Bush administration has put into effect.

AMY GOODMAN: Solicitor General Paul Clement argued the Bush administration’s case. In an exchange with Justice Stephen Breyer, Clement was challenged on whether current procedures give prisoners any room to challenge their imprisonment.

    JUSTICE STEPHEN BREYER: Suppose that you are from Bosnia, and you are held for six years in Guantanamo, and the charge is that you helped al-Qaeda, and you’ve had your hearing before the CSRT. And now you go to the D.C. circuit, and here’s what you say: “The CSRT is all wrong. Their procedures are terrible. But, Judge, for purposes of argument, I concede their procedures are wonderful, and I also can conclude it reached a perfectly good result.” OK? So you concede it, for argument’s sake. But what you want to say is: “Judge, I don’t care how good those procedures are. I’m from Bosnia. I’ve been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me, in the absence of some special procedure in Congress for preventive detention.” That’s the argument I want to make. I don’t see anything in this CSRT provision that permits me to make that argument. So I’m asking you: Where can you make that argument?

    PAUL CLEMENT: I’m not sure that he can make that argument, Justice Breyer.


    PAUL CLEMENT: I’m not sure he can make -—

    JUSTICE STEPHEN BREYER: If he cannot make that argument, how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people would like to make?

AMY GOODMAN: Solicitor General Paul Clement and Justice Stephen Breyer. Vince Warren, this line of argument?

VINCENT WARREN: This was a very interesting line of argument. What Justice Breyer was doing was setting up a hypothetical. And this was around the CSRT process. And just to remind folks, the CSRT process is one in which the detainee does not have a lawyer, cannot present evidence on his own, cannot see the evidence against him, the classified evidence, which is troubling enough. But what Justice Breyer is saying: let’s assume that that doesn’t matter and that you are in the position of one of the petitioners in this case, someone from Bosnia who was not picked up on the battlefield, and you simply want to make the constitutional argument that under the US Constitution the President cannot detainee me for six years without giving me a trial or releasing me.

And Justice Breyer asked Mr. Clement: can a petitioner — and namely, one of the petitioners in this case — can they make that basic argument? And Mr. Clement had to say no, because the CSRT and the Detainee Treatment Act process does not have a provision to allow for release, as far as the statute goes. And that’s a tremendous problem. And what that means is, under the proceedings, all a detainee can do is determine whether the — or all the judge can do is determine whether the proceedings went according to the military’s plan, but you cannot assert broad constitutional questions about whether the President had the right to detain you in the first place.

AMY GOODMAN: I’m looking now at the Washington Post, since we’re in Washington, D.C., and it says Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito were the most skeptical of Waxman’s arguments. Scalia asked Waxman if he could name one single case in the nation’s history or in 500 years of English law that would extend the writ to foreigners detained outside the country. Waxman responded that the answer was a resounding yes, but nothing he produced satisfied Scalia, who repeatedly returned to the question. Vince Warren?

VINCENT WARREN: That’s exactly what happened. It was interesting. Seth Waxman listed off — and I didn’t count them, but it was very close to fifteen or twenty cases in multiple jurisdictions in different countries in which courts, going back close to 400 years, had cited the precise principle that was at issue in the case, and Justice Scalia was not at all satisfied. And I think Mr. Waxman tried three or four times to satisfy him, but it simply wasn’t happening.

But, you know, it’s a red herring, in a large sense, because the justices that were not particularly moved were justices that were in the minority of the Rasul decision in 2004, and the majority in that decision felt quite clearly that the rights at issue really did extend to the people in Guantanamo. And in fact, a number of justices, after the back-and-forth with Justice Scalia, said, “Well, it seems to me that we’ve reached that question before, and we need to move past it.”

AMY GOODMAN: Anthony Kennedy is considered a swing vote here. He was focusing on what are practical solutions.

VINCENT WARREN: Yes. Justice Kennedy is considered someone whose vote is key. Of course, as we know, we need to win this — or anybody needs to win the case by a majority, which would be a minimum of five people. He was focusing on practical considerations, as far as I could tell, in the argument.

You know, the question, I think, with Justice Kennedy is whether he’s comfortable moving forward, making a broad pronouncement about the right of habeas corpus extending to the detainees, number one; number two, determining that the CSRT process and the DTA review process is not a substitute for suspended habeas corpus. And then the question that remains is, what is the Supreme Court going to do? Are they going to return it to the lower courts with specific instructions how to move forward, which would be optimal because the right of habeas corpus is supposed to be a speedy right, and it’s been six years, or is he going — or is the court going to return it to the district court, the lower courts, to figure out what to do, which would take substantially longer than if the Supreme Court took the bull by the horns?

AMY GOODMAN: Finally, Vince Warren, the Supreme Court has considered this twice before. What’s going to make three any different?

VINCENT WARREN: Well, the first case was an issue that was closer to this. The second case focused on military tribunals and not the DTA process, although they were important decisions in the second case – that’s the Hamdan case — and most notably, the Center for Constitutional Rights position that the Geneva Conventions did apply to the detainees at Guantanamo, and the court did rule that way.

This case is going to be potentially different, in large part because of the plaintiffs themselves. And there are thirty-seven plaintiffs, most of whom were not found on the battlefield. There were a number of plaintiffs that were from Afghanistan that were sold to the US through bounties. There are six detainees that were from Bosnia that actually had no connection to the battlefield at all and were turned over to the US by Bosnian governments. And so, the question here is not a question of, is the government trying to release the worst of the worst; it’s for people who have had no connection to the war on terror and who are asserting that they’re factually innocent.

Do they have an opportunity to do that under these procedures? And I think the answer is clearly no, and I think that might lead the court to push forward with a very broad pronouncement. And hopefully Congress and the President won’t continue to sidestep the Supreme Court ruling.

AMY GOODMAN: Vince Warren, I want to thank you very much for joining us. Vince Warren is executive director of the Center for Constitutional Rights.

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