In re Guantanamo Detainee cases

Court	District Court for the District of Columbia, United States
Case number	02-CV-0299 (CKK) and others
Decision title	Memorandum Opinion denying in part and granting in part respondents' motion to dismiss or for judgment as a matter of law
Decision date	31 January 2005
Categories	Terrorism
Keywords	Guantanamo Bay, Habeas corpus
Links	Memorandum opinion Memordandum opinion (original document)

Summary

Eleven Guantanamo detainees petitioned for habeas corpus, claiming that their continued detention without a right to judicial review was unlawful.

The Court partly agreed with the detainees. While they are not US citizens, they are being held under control of the US government. The fact that Guantanamo Bay is conveniently placed outside US sovereign territory does not change this. Hence, Guantanamo detainees have the right not to be deprived of liberty without due process of law, a fundamental constitutional right. This right had been violated, and the Combatant Status Review Tribunal (CSRT) procedures were found unconstitutional. And regarding alleged Taliban fighters, the Court held that they are state forces - regular soldiers or combatants - and should therefore receive prisoner of war-status and -protection under the Third Geneva Convention. Where they had not received such protection without proper reasons, their detention was illegal.

All other claims (based on the Sixth, Eighth and Fourteenth Amendment and the Alien Tort Claims Act) were rejected, they were inapplicable on the current cases.

Procedural history

In response to the al Qaeda attack on the World Trade Centre on 11 September 2001, US Congress passed a joint resolution authorizing the President ‘‘to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks, or harbored such organizationsor persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons’’ (the Authorization for Use of Military Force or "AUMF").

In accordance with the AUMF, US President George W. Bush ordered military operations to be commenced in Afghanistan against its regime, the Taliban, and al Qaeda, the terrorist organisation Afghanistan harboured. During the campaign, US forces captured many individuals who were actively fighting against allied forces on Afghan soil. Many of these individuals were classified by military authorities as ‘‘enemy combatants’’ and from 2002 onwards, these individuals were transferred to the US Naval Base at Guantanamo Bay, Cuba, where they continue to be detained.

It "is the government’s position that once someone has been properly designated as such, that person can be held indefinitely until the end of America’s war on terrorism or until the military determines on a case by case basis that the particular detainee no longer poses a threat to the United States or its allies" (p. 447). Because Guantanamo detainees were no US citizens, they were not entitled to any (human) right. And because they were usually considered "unlawful combatants" they were also not given prisoner of war-status and corresponding protection conform the Third Geneva Convention, as "regular" combatants would have received.

This situation led to many habeas corpus petitions - requests for review of the lawfulness of their continuing detention - by Guantanamo detainees. In the current case, eleven detainees have submitted habeas petitions.

Related developments

The first succesful challenge of the situation was the US Supreme Court's Rasul v. Bush-judgment in 2004, a case initiated by the Center for Constitutional Rights (CCR). The Court ruled that US courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in the course of armed conflict and subsequently detained in Guantanamo Bay.

Nine days after the Rasul decision, on 7 July 2004, the Department of Defense established military Combatant Status Review Tribunals (CSRTs) to replace US courts in reviewing charges and determining whether detainees were to be classified as “enemy combatants”.

And after the current case, by the end of 2005, Congress passed the Detainee Treatment Act (DTA), explicitly transferring jurisdiction over Guantanamo detainees’ habeas corpus writs from the US Circuit Court for the District of Columbia to the CSRT/military commission system. Government lawyers moved for retroactive application of the Act, in order to have all pending habeas corpus cases dismissed.

The current case is one of many that followed after Rasul v. Bush (often initiated by CCR), ultimately leading to the 12 June 2008 Supreme Court ruling in Boumediene v. Bush (with which the current case was consolidated in appeal) where it held that Guantanamo detainees could not be deprived of access to the US Federal Court system, adding that all their previous habeas petitions were eligible for reinstatement.

Legally relevant facts

In the current case, eleven Guantanamo detainees petitioned for habeas corpus in eleven cases, which were joined in this judgment. The petitioners allege that the detention at Guantanamo Bay and the conditions thereof violate numerous laws, including the Fifth Amendment of the US Constitution, the Alien Tort Claims Act, the Administrative Procedure Act and the Geneva Conventions. The respondents contend on behalf of the US that none of these provisions constitutes a valid basis for any of the petitioners’ claims and seek dismissal of all counts.

Core legal questions

Do petitioners have the right to judicial review of their continuous detention - and therefore, is the current system, including the CSRTs, not in violation of US law?

Specific legal rules and provisions

Common Article 3 of the Geneva Conventions.
US Authorisation to Use Military Force.
US Constitution, specifically the Fifth Amendment.

Court's holding and analysis

The Court found that petitioners have stated valid claims under the Fifth Amendment: while they are not US citizens, they are being held under control of the US government. The fact that Guantanamo Bay is placed outside US sovereign territory does not change the exclusive control the US exercises over the base, conform the lease agreement with Cuba. As such, Guantanamo detainees have the right not to be deprived of liberty without due process of law, a fundamental constitutional right. And this right was found to be violated in several ways:

The CSRTs fail to provide detainees with access to material evidence upon which the CSRT has based its decision to classify a detainee as “enemy combatant”;
The CSRTs fail to permit detainees any assistance of legal counsel to compensate for such lack of access;
Accusations of torture to make detainees confess, regardless of whether the confession would be true, are barely addressed; and
The definition of "enemy combatant" is too broad and might violate (international) law.

For these reasons, the CSRT procedures are unconstitutional as violating the detainees' right of due process.

Additionally, the Court held that Taliban fighters are usually regular combatants (soldiers); as such, they are entitled to prisoner of war status under the Third Geneva Convention, which protects soldiers against prosecution by the opponent for normal (as opposed to, e.g., the perpetration of war crimes) participation in an armed conflict. Those detainees who have not been specifically determined to be excluded from such prisoner of war status by a competent tribunal also have their petition granted.

However, the Court found that all remaining claims of petitioners must be denied. The Sixth, Eighth and Fourteenth Amendment were not applicable to the case. Concerning individual responsibility of US government officials (including the President), the Court ruled that the doctrine of sovereign immunity bars claims based on the Alien Tort Claims Act, and the general waiver of sovereign immunity contained in the Administrative Procedure Act is inapplicable because of the ‘‘military authority’’ exception in Section 701(b)(1)(G) of Title 5 of the US Code.

Further analysis

J.K. Elsea et al., 'Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Courts', Congressional Research Service (RL33180), 7 April 2009.

Instruments cited

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21 October 1950.
Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950.
Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287, entered into force 21 October 1950.

US Authorization for Use of Military Force (AUMF), Public Law No. 107-40 (115 Stat. 224) of 2001.
Fifth Amendment to the Constitution of the United States, 17 September 1789.

Related cases

Next to abovementioned Rasul and Boumediene cases, the Abdah v. Bush, Abdah v. Obama and Latif v. Obama cases are related to the current case as well.