Detainee Cases Making Their Way Through U.S. Federal Courts

The issue at hand is whether terror-war detainees held at Guantanamo Bay are entitled to contest their detention.

On Jan. 19, District Judge Richard Leon ruled that "no viable legal theory exists" by which Guantanamo detainees could contest their status in U.S. courts. Less than two weeks later, on Jan. 31, District Judge Joyce Hens Green ruled exactly the opposite.

The two decisions are "parallel," meaning that one doesn't "outrank" the other, explained Mario Mancuso, special assistant to the Defense Department's general counsel, during an interview with American Forces Press Service.

Green's decision specifically targeted the military's Combatant Status Review Tribunals, which were set up in July precisely to give detainees an outlet to contest their detention.

To date, 558 detainees have been through the CSRTs, according to Pentagon officials. Results of 487 of these tribunals have been released, and 22 individuals were found not to be enemy combatants. Some have been released to their home countries, and arrangements are being made to return the others.

However, Green ruled that the CSRTs didn't meet minimum due-process requirements because detainees didn't have the right to contest classified evidence, which was kept from them for national security reasons, and because they weren't allowed to have attorneys represent them at the hearings. The detainees did have assistance from military officers serving as "personal representatives."

Oral arguments to resolve the conflicting opinions have yet to be scheduled, but will be held in the U.S. Court of Appeals for the District of Columbia Circuit, Mancuso said. "Right now ... we have these two decisions, sharply contradictory, that are waiting to be appealed before the D.C. Circuit Court of Appeals," he said. "We're just waiting for the opportunity to argue our side of the case, and we'll see what happens."

Further muddying the legal playing field is a June 2004 U.S. Supreme Court decision that found the detainees are entitled to protection from U.S. courts even though they are not U.S. citizens and are physically being held outside the United States. The majority opinion in that case, written by Justice John Paul Stevens, said that Guantanamo Bay is under the "complete jurisdiction and control" of the United States according to the 1903 lease from Cuba.

Mancuso called the Supreme Court decision unprecedented and said there is "legitimate difference of opinion as to what exactly the Supreme Court said." He explained that some legal scholars interpret the ruling to mean the detainees have a right to be heard but have no legal basis for a case. Others interpret the ruling more broadly, believing the detainees have the same rights as American citizens to contest their detention in U.S. courts.

The Combatant Status Review Tribunals were instituted to comply with this Supreme Court decision, Mancuso said.

Critics have suggested the government started the tribunals to replace hearings under Article V of the Geneva Conventions. Article V contains the provision that if there's ambiguity over a detainee's status the detainee should receive a hearing to determine proper categorization.

Mancuso explained that the CSRTs have nothing to do with Article V and that these detainees never received such hearings because there was no uncertainty over their status. "There wasn't any confusion that they're unlawful combatants," he said. "The president had the authority to determine that at least those al Qaeda and Taliban members were not lawful combatants and did so."

The legal term for the issue facing the Court of Appeals is habeas corpus. Latin for "you have the body," the phrase describes a long-held right that allows courts to order that a detained person be brought before the court to decide the legality of the detention.

Mancuso said habeas corpus always has been a constitutional and statutory right for U.S. citizens. "It's a great privilege that distinguishes our legal system from many other legal systems," he said. "What the Supreme Court did in June was to say this precious right is large enough to include an additional category of persons, in this instance detainees being held at Guantanamo Bay."

Defense Department attorneys and officials don't agree with the Supreme Court decision but are complying with it, Mancuso said. "Clearly the issue has not been resolved yet," he said. "It's sort of still bubbling up through the federal court system."