Internee 10005 was first arrested less than a month after September 11, 2001. Lakhdar Boumediene and five other Algerians living in Bosnia were rounded up by local authorities after being told by the United States that the men were suspected of plotting to bomb the American embassy in Sarajevo. But after a three month investigation, Bosnia's Supreme Court found no evidence to support the charge and ordered the men released. At which point American peacekeeping troops promptly spirited the men off to Guantanamo Bay, Cuba, where they have been detained for six years.
Now, the men are seeking relief from the Supreme Court, which heard oral arguments last Wednesday in the case of Boumediene v. Bush. The justices are being asked to decide two core questions: Whether the detainees enjoy a constitutional right of habeas corpus, and if so, whether the Combatant Status Review Tribunals established by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 provide an adequate substitute for more traditional habeas proceedings.
The Court has already considered the first question in Rasul v. Bush, where it found that, because the United States exercised "complete jurisdiction and control" over the detention center at Guantanamo Bay, detainees were entitled to habeas relief in American courts as a matter of statute. But in a display of crisis jujitsu that has by now become familiar, the Bush administration was able to make a virtue of self-imposed necessity. Having forced an unfavorable legal decision against it, the White House pressured Congress to strip detainees of their statutory habeas rights lest the courts be flooded by petitions by purportedly dangerous terrorists. Now the justices must determine whether the "Algerian Six" have a constitutional right to habeas relief that trumps statute.
Supporters of the administration, invoking such cases as Johnson v. Eisentrager (1950), stress that courts have always denied that habeas corpus applied to "enemy aliens" captured abroad in wartime. According to attorney Brad Berenson, in a Federalist Society debate on the case, precedent therefore makes clear that detainees have no standing under "our own Constitution, which they of course aim to destroy."
But, "of course," that is precisely the question. The past rulings invoked by the government involved captives who were unambiguously agents of foreign powers at war with the United States, not citizens of allied nations snatched off the streets far from any battlefield. Traditionally, courts have used territory as a bright line to determine the status of prisoners: If you were picked up on American soil, you had habeas rights; if not, not. This made a certain amount of sense in traditional war; it makes much less in an ill-defined "War on Terror" that, to hear the administration tell it, makes the whole of the planet a battlefield. Here, hewing to a strict territorial rule has the perverse consequence that the Algerian Six would enjoy more rights, on the government's theory, if they had illegally infiltrated the United States like the Nazi saboteurs whose fate was considered in Ex parte Quirin (1941). The government's circular logic here seems better suited to a Monty Python sketch than a court of law: Throw the old lady in the pond, and if she floats, she's a witch! She might drown, you say? Why are you so worried about what happens to witches?
If, as many observers believe likely, the Court will side with the detainees on the first question, it will have to determine whether the Combatant Status Review Tribunals established by Congress provide an adequate substitute for more traditional habeas hearings (or remand the case to a lower court to consider that question). The tribunals clearly fall short in a number of ways. Detainees cannot invoke any rights under the Geneva Conventions before the tribunals. Instead of attorneys, they have "representatives" appointed by the military itself. Secret evidence and evidence obtained by coercion—the Algeria Six all say they have been subject to "enhanced interrogation techniques"—are admissible. CSRT determinations can be appealed to the Court of Appeals for the District of Columbia Circuit, but review is largely limited to whether the tribunals followed their own procedures, and the court must presume the evidence presented before the tribunal was accurate and complete.
Typically, the evidence provided to detainees for use in their own defense is anything but accurate and complete, according to Lt. Col. Stephen A. Abraham, who has himself served on the tribunals. This summer, Abrahams testified before the House Armed Service Comittee that the tribunals were little more than "an effort to lend a veneer of legitimacy to the detentions, to 'launder' decisions already made." After one tribunal found that a detainee had been incorrectly designated as an enemy combatant, Abrahams alleged, another was convened "for the purpose of overturning prior findings that were favorable to the detainees."
No American would accept the proposition that one of our citizens, having been cleared of wrongdoing by American courts, could be abducted by a foreign power and imprisoned for years, only to have his fate determined by a kangaroo court that flouted the most elementary procedural rights. The Supreme Court should not accept it from our government either. If a legitimate hearing finds that Boumediene and his fellow detainees are guilty of aiding America's enemies, so be it. But we should not be satisfied to leave them to languish until the military decides whether the witches will float.
Julian Sanchez is a reason contributing editor.