There are a couple of cases headed toward argument in the Supreme Court next term. Professor Lederman at Balkinization:
The petitioners in the Guantanamo habeas cases and their amici have filed top-side merits briefs in the Supreme Court. The case will likely be argued in December. We've got all the links over at SCOTUSblog.
Perhaps a little more approachable than the briefs themselves is an excellent description of them by The Anonymous Liberal:
I just finished reading through the brief submitted on behalf of the detainees (full text here), and it's quite compelling. I don't think the D.C. Circuit's bright-line holding that the Suspension Clause doesn't apply to foreigners held outside of U.S. sovereign territory is likely to hold up. It flies in the face of the Supreme Court's Rasul decision and it's just too rigid a rule, particularly if you're going to define Guantanamo Bay--a place that has long been under U.S. control and subject to U.S. law--as being outside of U.S. sovereign territory (as the brief notes, even the iguanas at Guantanamo are protected by U.S. law). Plus, if the Supreme Court agreed with the D.C. Circuit on this technical point, I find it hard to understand why they would have reversed themselves and granted cert.[italics are Spot's]
So if we assume that the Suspension Clause does apply to detainees at Guantanamo, the question then becomes: has Congress either validly suspended habeas or provided an "adequate and effective" substitute for it? Under the terms of the Suspension Clause, Congress is only allowed to suspend habeas corpus in cases of "rebellion and invasion"--which is pretty clearly not the case here. So the ultimate issue is whether the Combatant Status Review Tribunals established by the President and ratified by Congress are an adequate and effective substitute for habeas under the holding of Swain v. Pressley, 430 U.S. 372, 382 (1977) ("[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus.").
The briefs cite several examples of how the CSRTs work. Here's one:
Abdullah Al Kandari was designated an enemy combatant principally because, more than a year after he was brought to Guantanamo and more than a year after this suit was brought, an "alias" of his name was allegedly found on a list of names on a document saved on a computer hard drive allegedly "associated with a senior al Qaeda member." S.A. 1360. Mr. Al Kandari stated that he is not known by any alias, and asked what name appeared on the list. He was not allowed to know; the information was classified. J.A. 68. The name of the "senior al Qaeda member" was likewise classified, as was the place where the hard drive was found. Mr. Al Kandari was thus left to defend himself against the accusation that an unknown alias of his appeared on a list on a computer found somewhere in the world associated with someone. It is impossible to rebut such a charge, and Mr. Al Kandari said so: "The problem is the secret information, I can't defend myself." Id.
Here's another one:
Assistance of counsel was particularly important here because the detainees were isolated at Guantanamo with virtually no ability to communicate with the outside world. In these circumstances, assistance of counsel was essential to test the allegations and gather evidence to disprove them. For instance, one of the principal reasons for detaining Murat Kurnaz as an enemy combatant was that he was a friend of Selcuk Bilgin, who was “alleged to have been a suicide bomber.” App. 107. Detained at Guantanamo, without counsel or access to the outside world, Mr. Kurnaz could only express shock at that allegation. He did not know and could not find out that that his friend, Mr. Bilgin, far from being a suicide bomber, was alive and well and living peacefully and without criminal suspicion in their hometown of Bremen, Germany. That is something his counsel could have found out and proved in short order, had he been allowed counsel. Because he was not, the allegation that his friend was a suicide bomber was accepted by the CSRT as true, as it would be on review under the DTA, even though it was objectively false. Thus, even when the detainees were informed of the accusations against them, without the assistance of counsel, they were deprived of a meaningful opportunity to rebut the accusations and to develop and present the evidence needed to establish their innocence.
If you lock people away and deny them any meaningful way to defend themselves, they will of course be found guilty. The mere allegation of guilt becomes its proof.
This is Franz Kafka, boys and girls, not due process.
A thump of the tail to Dora for the link to The Anonymous Liberal.