Mar 292006
Authors: Meg Burd

As the Supreme Court hears the case of Salim Ahmed Hamdan, currently a detainee held by U.S. forces at Guantanamo Bay and accused of being Osama bin Laden’s chauffeur, many questions about the procedures, ethics and indeed purpose of the prison located off the shore of American soil are rightly being called into question.

A landmark case, Hamden v. Rumsfeld is being recognized as the most significant challenge to presidential war powers since World War II.

“The case was filed by detainee Salim Ahmed Hamdan two years ago, asserting that President George W. Bush’s order creating military commissions to try men he has designated as “enemy combatants” violates the Constitution, military code and international law of war,” reports Tom Brune in a Newsday article.

“More than three dozen briefs have been filed on Hamdan’s side, largely arguing that the military tribunals established by the White House to try the detainees are illegal,” notes Tony Mauro in a story in the New York Law Journal.

Even the justices of the Supreme Court appear concerned over the issue of the detainees’ apparent lack of rights. “Several of the justices appeared troubled by the administration’s position that international laws including the Geneva Convention do not apply to the Guantanamo prisoners,” notes James Vicini in a Reuters report that immediately followed the first day of hearings.

Indeed, perhaps one of the most difficult questions surrounding the entire situation at Guantanamo, and one that an angry Justice David Souter reportedly brought up during the Supreme Court hearings this week, is the question of habeas corpus.

After 9/11, the administration argued that the rights of the Geneva Convention need not apply to those they “scooped up” in places such as Afghanistan, Pakistan and other areas because, they argued, the Geneva Convention rules (which govern the way POWs are treated, offering them a “competent tribunal” swiftly after their capture to ensure that they really were enemy combatants, and assuring them rights such as freedom from torture, release at the end of the war, and the right to send letters home) did not apply to such prisoners because the prisoners were not from a uniformed army or another combatant country.

“In 2004, the Supreme Court stepped in,” notes Jack Hitt in a recent story during “This American Life” on NPR. “It said if prisoners aren’t going to be covered by the Geneva Conventions, that’s fine. But they couldn’t be allowed to fall into a legal black hole… They had to be given some way to challenge their detainment. It’s one of the oldest rights in western civilization, known as habeas corpus.”

With its first recorded use in 1305 (although it could formally date back as far as the 12th century) the “Great Writ” of habeas corpus basically allows prisoners to challenge why they are detained. An issue in the Revolutionary War here in America, it originally demanded of the king to explain why he had jailed someone. This was to prevent those in power from simply detaining anyone they pleased secretly or without purpose.

Such a writ has been instrumental in our own justice system. In a 1969 Supreme Court case, the court found that it was “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”

However, situations in Guantanamo, as reported by many sources (and questioned by the justices this week) appear in violation of this age-old right. Indeed, in examples provided during the NPR story “Habeas Shmabeas,” Hitt discusses the so-called “Combatant Status Review Tribunal” in which “the tribunal assumes all the evidence against the detainee is correct,” as Hitt states, and records show that judges cannot or will not back up or in some cases even present evidence against those facing the tribunal. Indeed, in such cases, prisoners are not even allowed an outside lawyer, as the NPR story reported.

A case like that of Murat Kumaz, a Turkish citizen raised in Germany, as outlined by Hitt in the NPR story, seems to illustrate perfectly the need for both a proper hearing in which habeas corpus is properly and thoroughly granted, as well as a need for a larger reassessment of the entire Guantanamo situation.

Kumaz, as Hitt reports, was declared an enemy combatant, even though his Pentagon file has no evidence against him in it, and official memos state that, “there is no evidence linking him to the Taliban.” Indeed, the only so-called “evidence” against him is that he had a friend who was supposed to have been a suicide bomber in Turkey in 2003.

However, considering that Kumaz was detained in 2001, it seems odd that this would be the reason for picking him up in the first place. Besides the fact that he was picked up on supposed evidence that did not occur until two years after his detainment, the biggest shocker is perhaps that his friend, the supposed bomber, never even was a bomber and is in fact alive and well in Germany today.

While it cannot be argued that actual terrorists must not be stopped (“If they’re al-Qaeda, detainment is perfectly justified. No one disputes that,” notes Hitt), it is important that the Supreme Court question the current methods and means of detainment and ensure that the situation at Guantanamo is truly useful and not just caught in a “legal black hole.” Questions must, and should, be asked when rights so intrinsic to our legal system as habeas corpus are on the line.

Meg Burd is a graduate anthropology student. Her column runs every Thursday in the Collegian.

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