The writ of habeas corpus has been around over twice as long as the United States has been a sovereign nation. It's origin can be traced back to England. Today, many countries around the world have something similar to habeas in their justice systems.
A habeas petition is simply a way for someone being incarcerated to have his jailer brought before a judge to justify his detention. I am not a habeas scholar. But the history of the writ in the United States is interesting, to me anyway. To me, habeas is an extraordinary, seldom granted last-ditch effort to make sure the petitioner got their day in court. And the correct court.
I am currently reading a book titled "The Guantanamo Lawyers." Most Americans, and I am sure many lawyers too, never really understood what was going on at Guantanamo Bay detention center in Cuba. We were told the "worst of the worst" captured during the on-going war on terror were being held there. That's what we were told.
What most of us didn't know is that very few of the detainees were captured on a battlefield. We also didn't know that the vast majority of them were sold to us by countries like Pakistan. We were not told they were being held without being charged of any crime. We were also not told they had no right to an attorney. And most egregiously, we were not told the detainees had no access to any type of hearing to determine anything, let alone criminal liability.
From a legal perspective all of these bad guys were in legal limbo. The Bush administration's lawyers created the term "enemy combatant". And on advice from these same lawyers, President Bush decided the United States could do anything we wanted to with anyone labeled as such. The policy was put into effect and no one created much dissent.
Under President Bush's authority such people were denied the right to a hearing of any kind, the right to be made aware of any criminal charges they faced, and the right to an attorney. Every criminal defendant in the United States has the absolute right to all three of these.
Here is a little background to help my post:
In January 2002, when the first detainees were brought to Guantanamo, I was still an undergraduate student at the University of Texas at Austin. Like everyone else, I was very upset on 9/11. And I even supported military action in Afghanistan.
We were told the Taliban let Al Qaeda operate and train within Afghanistan. The Taliban regime wasn't really recognized as an official government, it was oppressive (especially to women), and they wouldn't turn over Osama Bin Laden at President Bush's demand.
Thanks to the media and post 9/11 hysteria, the Taliban were quickly demonized. It was repeatedly asserted by numerous members of the government and media, the Taliban were indirectly involved in 9/11. Some even claimed the Taliban knew well in advance of the attacks.
Like most Americans, prior to 9/11, I didn't know a Taliban from a telemarketer. But, also like most, I bought what was being sold through the media. 9/11 pissed me off.
And so the United States joined efforts with the Northern Alliance to overthrow the evil Taliban. The Northern Alliance was a scattered bunch of small military factions, ran by war lords partly financed from the sell of poppy. Poppy makes heroin in case you didn't know. So, illegal drug trafficking is one way the Northern Alliance financed themselves.
The United States has a history of overlooking the wrongdoings of our allies. As long as you're against the same people we are, well, you're ok with us. My enemy's enemy is my friend. Remember our support of Iraq during the Iran/Iraq war? And then a few years later we turn around and claimed the same guy we said was a good guy, is actually a bad guy whose government we should overthrow. Was Saddam Hussein ever a good guy? As long as he was killing Iranians he was. I digress.
The CIA sent a couple of teams into Northern Afghanistan well in advance of any uniformed soldiers. These teams were armed with cash. And millions of dollars of it. The CIA officers bought allegiance from the various war lords. Even though most of these guys didn't like the Taliban, they wanted paid to help the American effort. And we paid them. But I doubt we got receipts.
We know what happened next. Bombs started hitting the dirt. Soldiers landed. And after about 2 weeks the Taliban was dethroned. This was all on TV in case you missed it. Now the US Military is running the country and looking high and low for Bin Laden.
Pakistan, the only country on the planet to recognize the Taliban as the official government of Afghanistan, began selling us "captured" bad guys. And we bought them for millions of dollars and flew many of them half way around the world to Guantanamo Bay, Cuba. Apparently we never bothered to verify that some, if not most, of the bad guys were actually bad guys before we cut the check.
I remember the first video images of prisoners at Guantanamo. They were in orange jumpsuits and were housed outside in what looked like dog cages. Most Americans didn't care about the dog cages. Terrorists want to kill everything American. Dog cages aren't so bad. However, human rights activists went nuts and eventually they were moved inside.
But I, like most everyone else, had no idea of their legal status, or lack thereof. And though I was starting to distrust the Bush administration, I still bought the story the "worst of the worst" were at GTMO.
It didn't take long for some attorneys (not just Americans) to figure out exactly what was going on down there. Thus, began the fight.
In early 2002, the Center for Constitutional Rights filed two habeas petitions on behalf of two detainees at GTMO. The petitions were denied by a federal district court on jurisdiction grounds. Cuba wasn't the United States. The appellate court affirmed. Over the Bush administration's loud objections, the U.S. Supreme Court agreed to hear the case in late 2003. Oral arguments were held in the spring of 2004 and the decision came down in June 2004.
Rasul v. Bush held that the GTMO detainees did have habeas rights and therefore access to federal court. The U.S. Supreme Court rejected the Bush administration's bold assertion that it could run a prison with no judicial oversight, even in Cuba.
A Republican majority congress responded.
The Military Commission Act of 2006 stripped habeas rights from non U.S. citizens that were determined to be enemy combatants or were awaiting a hearing to determine same.
Combatant Status Review Tribunals were created to determine if a detainee was, in fact, an "enemy combatant." If one was an enemy combatant, then per the MCA, they had no habeas rights.
The rules governing such reviews (I can't bring myself to call them hearings) were unlike anything seen in the United States. The rules of evidence didn't apply and the government's evidence was presumed to be genuine and accurate. And many didn't have attorneys. Given such a system, however, I am not sure what good having an attorney would have done.
The Guantanamo lawyers didn't give up, however. A case challenging almost everything about Combatant Status Review Tribunals made its way to the U.S. Supreme Court.
In 2008, a 5-4 majority in Boumediene v. Bush held that detainees at Guantanamo were entitled to protections of the United States constitution; enemy combatant or not, they had habeas rights. Writing for the majority, Justice Kennedy wrote that the MCA was an unconstitutional suspension of the writ of habeas corpus. If you're into constitutional law, the decision makes a nice read.
As an attorney, reading the "Guantanamo Lawyers" is shocking because other American attorneys actually legitimized the stripping of the detainees legal rights. I am actually ashamed. And as an American, these same actions go against everything I was raised and trained to believe was great about my country.
I feel honored, however, to call myself an attorney in the same vane as the small dedicated group of lawyers that fought like hell on behalf of our constitution. And I am pleased the United State Supreme Court did the right thing in the end. I wish the decision would have been unanimous, but 5-4 works for me.