Document - United States of America: No Substitute for habeas corpus: Six years without judicial review in Guantánamo

On 5 December 2007, the United States (US) Supreme Court is due to hear oral argument in the consolidated cases of Boumediene v. Bush and al-Odah v. USA (Boumediene), concerning detainees held in indefinite executive detention without charge or trial in the US Naval Base at Guantánamo Bay, Cuba. The issue before the Court centres on whether the Military Commissions Act (MCA), signed into law on 17 October 2006, violates the US Constitution by stripping the courts of jurisdiction to consider habeas corpus petitions from the Guantánamo detainees. Embedded in this legal controversy is the Combatant Status Review Tribunal (CSRT), an executive body established under an order signed by the then Deputy Secretary of Defense Paul Wolfowitz in July 2004, some two and a half years after detentions began at Guantánamo, to determine whether the detainees held in the base were "properly detained" as "enemy combatants".

The CSRT – a scheme described by the administration as "intended solely to improve management within the Department of Defense concerning its detention of enemy combatants at Guantanamo Bay"(1) – consists of panels of three military officers who can consider any information, including information that is hearsay, classified, or that has been obtained under torture or other ill-treatment, in making their determinations. The detainee, held thousands of miles from home (or any battlefield) and virtually cut off from the outside world, does not have a lawyer or access to any classified evidence used against him. There is a presumption in favour of the government’s information presented to the tribunal. Under the Detainee Treatment Act (DTA), enacted in December 2005, judicial review is limited to a single court, the US Court of Appeals for the District of Columbia (DC) Circuit, and to review of the CSRT’s "propriety of detention" decisions.(2)

Amnesty International is among the organizations and individuals, including the UN High Commissioner for Human Rights, a number of former US judges, diplomats and military officers, a senior US Senator and nearly 400 UK and European parliamentarians, to have filed amicus curiae briefs in the Supreme Court in August 2007, seeking to have the Court recognize the right to habeas corpus, as a right that is guaranteed to the detainees regardless of whether they are deemed to be within reach of the US Constitution.(3) This companion report to Amnesty International’s brief outlines the international right to habeas corpus, a fundamental protection against detainee abuse and unaccountable government (see Sections 2 and 3). It traces the development of the CSRT scheme in Guantánamo, describing its origins as part of the administration’s pursuit of unchecked executive power in the "war on terror", a pursuit that has undermined the rule of law. When the Supreme Court has intervened previously in "war on terror" detention cases, the executive has interpreted its rulings in narrow, cramped fashion and in a way that violates fundamental human rights principles. In so doing, and now aided by the DTA and MCA, it has flouted the USA’s international obligations and contradicted its own National Security Strategy and National Strategy for Combating Terrorism, which promised to put respect for human dignity, the rule of law and limits on the absolute power of the state at the heart of its counterterrorism policies.(4)

The decision of a CSRT represents a potential life sentence for a detainee. As a federal judge has noted, "it is the government’s position that in the event a conclusion by the tribunal that a detainee is an ‘enemy combatant’ is affirmed, it is legal to hold the detainee in custody until the war on terrorism has been declared by the President to have concluded or until the President or his designees have determined that the detainee is no longer a threat to national security". "At a minimum", the judge noted, "the government has conceded that the war could last several generations".(5) In his State of the Union address in January 2007, President Bush reiterated that the "war on terror we fight today is a generational struggle". The Chairman of the Joint Chiefs of Staff has since said that the "war on terror" will last at least another 20 to 30 years.(6)

The CSRT was established following the 28 June 2004 Rasul v. Bush judgment of the Supreme Court which ruled that the US courts had jurisdiction, at least under federal law, to consider habeas corpus petitions filed on behalf of the Guantánamo detainees. The Rasul opinion was a setback to the administration’s Guantánamo regime. However, although the Court remanded the case to the lower court to consider "the merits" of the detainees’ claims, and indicated that those claims "unquestionably describe custody in violation of the Constitution or laws or treaties of the United States", the narrowly framed ruling did not specify the content of any rights the detainees held.(7) Over three years after the Rasul opinion, none of the more than 300 detainees still held in Guantánamo has had the lawfulness of his detention reviewed on the merits. None of the over 400 detainees freed from the base to release or further custody in their own or other countries was transferred by judicial order.(8)

Habeas corpus is a remedy that protects fundamental human rights, including the right not to be subjected to enforced disappearance, secret detention, arbitrary detention, unlawful transfer, torture and other cruel, inhuman or degrading treatment, and the right to a fair trial by an independent and impartial tribunal established by law. Violations of these rights have occurred in the context of these executive detentions.

Applying its global war framework, the US administration has viewed habeas corpus as an abuse rather than as a protection against abuse. With echoes of President Bush’s assertion in November 2001 that "we must not let foreign enemies use the forums of liberty to destroy liberty",(9) the version of the habeas-stripping MCA which the administration sent to Congress on 6 September 2006, for example, stated that the legislation was necessary because "the terrorists with whom the United States is engaged in armed conflict have demonstrated a commitment… to the abuse of American legal processes" (that is, via habeas corpus petitions). The CSRT is an administrative review scheme established by the same Department of Defense which the following year appeared to equate judicial process with terrorism when listing "vulnerabilities" of the USA. Its National Defense Strategy, released in March 2005, asserted that "Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism."(10)

Amnesty International considers that the CSRT scheme cannot and does not serve as an adequate or acceptable substitute for habeas corpus. The right of someone deprived of their liberty to challenge the lawfulness of his or her detention in an independent, impartial and competent court with the power of remedy is a right which each and every Guantánamo detainee is owed and have so far been denied. The CSRTs do not and cannot meet this standard. Section 5 of this report details the shortcomings of the CSRT scheme, including that:

• The CSRTs lack independence from the executive, the branch that entirely controls the detentions and applied the "enemy combatant" label to the detainees in the first place. Some detainees initially found not to be "enemy combatants" had that determination reversed after Pentagon authorities sent their cases back to the CSRT for reconsideration;
• The CSRTs are not a competent tribunal as they lack the power of remedy, including release. Indeed, detainees have been held for as long as 20 months after a CSRT finding of "no longer enemy combatant". In addition, Amnesty International considers that a military body such as the CSRT lacks competence to review the cases of civilian detainees;
• There is no meaningful way for the detainee to challenge the government’s information. He has little or no access to witnesses, no access to classified information used against him, and little way of challenging hearsay information;
• The detainee is denied access to a lawyer for the CSRT process. He is merely assigned a "personal representative", a US military officer, with whom his relationship is not confidential;
• The CSRT can rely upon information obtained by unlawful methods, including information coerced from detainees subjected to enforced disappearance, torture or other cruel, inhuman or degrading treatment, including secret and prolonged incommunicado detention;
• The CSRT considers the status of "enemy combatant" as synonymous with "lawfully held", and the detainee has no meaningful opportunity to challenge this;
• The CSRT is a procedure that is applied only to foreign nationals, in violation of the international prohibition against discrimination;
• The CSRTs were conducted after an unreasonable delay of more than two years after the detentions began. Once started they were conducted with undue haste;
• The CSRT can be used to facilitate unlawful custody and to obscure the reasons behind the detention. It also leaves detainees exposed to a range of human rights violations inflicted by the same branch of government that is reviewing the detentions.

In its October 2007 brief to the Supreme Court, the government maintains that the judicial review under the DTA "is a fully adequate substitute for habeas corpus in this extraordinary wartime context". (11) International law, however, requires that detainees be able to access a competent, independent and impartial court, as a tribunal of first instance, to challenge their detention, not merely be provided with (narrow) appellate review of an admininistrative review procedure. The judicial review which the DTA allows the DC Circuit Court of Appeals to undertake – it has not yet been conducted – is too little and too late to overcome the CSRTs flaws or to guarantee the detainees a remedy. As one of the petitions to the US Supreme Court argues, "even if a [detainee] were to succeed against this stacked deck, the only remedy may well be another CSRT and an endless cycle of DTA review and remand."(12)

Amnesty International is concerned that the CSRT scheme has been manipulated to suit the unlawful objectives of the executive. For example, prior to a federal court ruling in 2005 that the CSRT scheme was inherently unfair, 0.8 per cent of the CSRT decisions were of "no longer enemy combatant" (NLEC) (three out of 365). After the ruling, but before the appeal against it was heard, this figure rose to 18 per cent (35 out of 193), a rate more than 20 times greater. The administration has continued to promote the 38 NLEC decisions as indicators of a fair process, including in testimony to Congress and in legal briefs to the courts. In its October 2007 brief to the Supreme Court in the Boumediene case, for example, it argues that these 38 cases show that the CSRT is "far from being a rubber stamp" for the executive.

Perhaps the sudden spate of NLEC decisions was unrelated to the ruling against the CSRTs. However, as this report details, there is a wider pattern of evidence (detailed in Section 4) that the administration has manipulated detainee cases to avoid judicial scrutiny of executive action – the reason Guantánamo was chosen for these detentions in the first place. For example,

• Late on a Friday afternoon in October 2004, the government told a federal judge that Yemeni detainee Salim Hamdan had been moved out of the solitary confinement in Guantánamo in which he had been held for the previous 10 months. The court had been due hear oral arguments the following Monday to consider the "urgent and striking claim" brought on behalf of Hamdan in a habeas corpus petition that his solitary confinement amounted to inhumane treatment. The judge found that the administration’s move meant that he could not now review the claim.
• In January 2005, five days after allegations of the earlier rendition to Egypt and torture of Guantánamo detainee Mamdouh Habib were made public in documents filed in habeas corpus proceedings in District Court, the Pentagon announced that this Australian national – detained since October 2001 – would be transferred from Guantánamo to Australia. The US administration reportedly told Australian officials that the CIA did not want the rendition and torture evidence aired in court.
• On 22 December 2005 a federal judge ruled that the continued indefinite detention of two detainees, Abu Bakker Qassim and Adel Abdul Hakim, nine months after they had been found to be "no longer enemy combatants" by CSRTs at Guantánamo, was unlawful, but the judge decided that he could provide no remedy. The case was scheduled to be argued in the DC Court of Appeals at 9.30am on Monday 8 May 2006. At 4.30pm on Friday 5 May 2006, the detainees’ lawyers received a telephone call from the Department of Justice informing them that their clients, along with three other Uighur detainees, had been transported to Albania. At 4.39pm on 5 May 2006, the administration filed an emergency motion that the case should be dismissed as moot because the detainees were now in Albania.

More generally the timing of releases and transfers of detainees from Guantánamo and the filing of charges against a small number of detainees – all events entirely within the control and discretion of the executive – provide further evidence of detainee case manipulation. Drawing from a chronology of litigation and detainee transfer decisions, Appendix 2 to the report reveals evidence of a pattern of increased, publicly-announced, activity relating to "process" provided to detainees in periods leading up to crucial judicial interventions.

With such evidence in mind, and the requirement on governments to ensure that justice is not only done but is seen to be done, Amnesty International considers that the issue pending before the Supreme Court goes beyond questions of the rights of the Guantánamo detainees through to the very concepts of accountable government, the separation of powers, and the rule of law. Eight decades ago, a Supreme Court Justice wrote of the US system of government established following the Constitutional Convention of 1787 in Philadelphia:

"Checks and balances were established in order that this should be a government of laws and not of men… The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power… And protection of the individual… from the arbitrary or capricious exercise of power was then believed to be an essential of free government."(13)

The Guantánamo detainees, noted Justice Kennedy in the Rasul decision in 2004, were being held "indefinitely, and without benefit of any legal proceeding to determine their status". This remains the case more than three years later. Not only is the CSRT not a legal proceeding, as the Pentagon has stated, it is not even one that reviews the lawfulness of detention, but merely provides executive review of existing executive "enemy combatant" labels. Nor does judicial review under the DTA determine status, but only examines whether the CSRT system operated according to its own flawed procedures and consistent with applicable US law. Moreover, six years after detentions began, no such reviews by the DC Court of Appeals had been conducted. Section 6 raises concerns about the government’s approach to DTA review.

In a "war on terror" detention case in 2004, the US Supreme Court said that for the judiciary to "forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government".(16) Such "concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid."(17) Habeas corpus, on the other hand "allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions."(18)

At the outset of the "war on terror", by passing an overbroad Authorization for the Use of Military Force (AUMF), Congress failed to restrain an executive which has, inter alia, expressed the view over recent years that presidential authority can override international and US law.(19) Since then, Congress has passed legislation, such as the DTA and MCA, provisions of which contravene the USA’s international obligations. In so doing the legislature has allowed the executive to pursue a detention regime that operates in a "rights-free" zone.

Whatever inefficiencies, frictions or degrees of deference may exist within and between the three branches of government in the USA, the internal workings of federal government must not be used to justify the USA’s failure to comply with its international treaty obligations.

"All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State Party...This understanding flows directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’."(20)

1.1 Timeline of denial: Six years pursuing a ‘rights-free’ zone

The CSRTs provided the administration with a façade of process and the detainees no remedy for the injustice they faced. Although the CSRT Order required that the detainees be informed that they had "the right to seek a writ of habeas corpus" in the US courts, the administration at the same time embarked upon a litigation strategy under which it argued in those same courts that the Rasul ruling meant no more than that the detainees could file habeas corpus petitions only to have them necessarily dismissed. Effectively maintaining its pre-Rasul position that led it to choose Guantánamo as a location for "war on terror" detentions, the administration argued that, as foreign nationals held on territory that was ultimately part of Cuba, the detainees had no rights that could be enforced in the US courts. Even the CSRT was more process than the detainees were due, according to the government.(22)

In the space of two weeks in January 2005, two judges faced with habeas corpus petitions from Guantánamo detainees, issued two dramatically different interpretations of the Rasul ruling. The first favoured the government position – finding "no viable legal theory" under federal, constitutional or international law by which to issue writs of habeas corpus.(23) The second judge largely rejected the government’s position, finding that the detainees "possess enforceable constitutional rights", that the right not to be deprived of liberty without due process of law "is one of the most fundamental rights recognized by the US Constitution", and that the CSRTs did not provide due process.(24) These divergent rulings would require resolution by a higher court, and the matter went to the Court of Appeals for the District of Columbia (DC) Circuit. However, although it first heard arguments in the case in September 2005, the Court would not rule on the question until February 2007, because its consideration of the issue was deflected by the passage in US Congress of two pieces of legislation.

In December 2005, a few weeks after the Supreme Court agreed to consider the habeas corpus petition brought on behalf of Yemeni detainee Salim Ahmed Hamdan challenging the military commission system that was set to try him in Guantánamo, Congress passed the Detainee Treatment Act (DTA). The DTA stripped the courts of jurisdiction to consider certain habeas corpus petitions from Guantánamo detainees. In place of such habeas review in the District Courts, Section 1005 of the DTA provided for narrow review by the DC Circuit Court of Appeals of any final CSRT decision that "an alien is properly detained as an enemy combatant" and whether the CSRT determination was consistent with the standards and procedures established for the tribunals by the administration. The Court of Appeals could also consider whether the CSRT’s standards and procedures were consistent with the Constitution and laws of the United States, to the extent that they were applicable. Section 1005 also stated, however, that nothing in it "shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States", and added that for the purposes of the Act, the "United States, when used in a geographic sense…, in particular, does not include the United States Naval Station, Guantánamo Bay, Cuba.".

Signing the DTA into law, President George W. Bush said that he "appreciate[d] the legislation’s elimination of the hundreds of claims brought by terrorists at Guantánamo Bay, Cuba, that challenge many different aspects of their detention and that are now pending in our courts."(25) This is not how the Supreme Court interpreted the Act, however. It rejected the government’s motion to dismiss the case and ruled in Hamdan v. Rumsfeld in June 2006 that the DTA did not apply to those habeas corpus petitions, like Salim Hamdan’s, that had been filed prior to the enactment of the DTA.

The administration responded to the Hamdan ruling by calling on Congress to pass further legislation that would allow secret US detentions abroad to continue, authorize the President to establish revised military commissions, amend the US War Crimes Act to decriminalize under that Act certain Geneva Convention violations by US personnel, and strip the courts of jurisdiction to consider any habeas corpus petition filed on behalf of any foreign national held in US custody anywhere as an "enemy combatant". In September 2006, Congress duly passed the Military Commissions Act (MCA), which President Bush signed into law on 17 October 2006. Under the MCA, judicial review is limited to that provided under the DTA, that is, to whether the administration is applying its CSRT rules properly. Specifically, the MCA states,

"(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in… section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

On 20 February 2007, the Court of Appeals for the DC Circuit issued its long-delayed decision on the Guantánamo cases which had produced the divergent post-Rasul District Court opinions in January 2005. The Court of Appeals ruled that the MCA’s habeas-stripping provisions expressly applied to "all cases, without exception, pending on or after the enactment of this Act", and therefore that the "federal courts have no jurisdiction in these cases". (28) It further ruled that because the detainees – as foreign nationals captured and held outside US sovereign territory – had no constitutional rights, Congress had not violated the Suspension Clause of the Constitution which prohibits suspension of habeas corpus except if required for public safety "in cases of rebellion or invasion". One of the three judges dissented, arguing inter alia that Congress had violated the Suspension Clause by failing to provide an adequate alternative remedy for the Guantánamo detainees who had the common law right to habeas corpus.(29)

On 2 April 2007, the Supreme Court dismissed the appeal from the Court of Appeals decision. Lawyers for the detainees asked it to reconsider. The government opposed reconsideration on the grounds that it was an unwarranted and "extraordinary remedy", but lawyers for the detainees responded with a declaration from a military intelligence officer, Lieutenant Colonel Stephen Abraham, who described the CSRT system’s shortcomings from an insider’s perspective. Another officer, a US Army Major and military lawyer who sat on 49 CSRT panels, has since made a declaration adding further evidence of the system’s flaws.

On 29 June, the Supreme Court agreed to take the case, and is due to hear oral arguments on 5 December 2007. A decision is not expected until the first part of 2008, by which time the Guantánamo detentions will be well into their seventh year. All branches of the US government must ensure justice and remedy as a matter of urgency.

2. Habeas corpus – protecting individual rights

In 2003, a US federal court noted that "there exists a clear and universally recognized norm prohibiting arbitrary arrest and detention" which is "codified in every major comprehensive human rights instrument and is reflected in at least 119 national constitutions".(36) The prohibition of arbitrary detention has long been recognized by the international community in the Universal Declaration of Human Rights and in treaties developed since the Declaration was adopted in 1948.(37) In an address to the UN General Assembly on 25 September 2007, and repeated in a proclamation on 23 October, President Bush said the UDHR "stands as a landmark achievement in the history of human liberty",(38) and the US government continues to assert that the International Covenant on Civil and Political Rights (ICCPR), which the USA ratified in 1992, "is the most important human rights instrument adopted since the UN Charter and the Universal Declaration of Human Rights, as it sets forth a comprehensive body of human rights protections."(39) These protections include the right not to be arbitrarily deprived of one’s life (article 6), the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (article 7), the right of any detainee to be treated with humanity and with respect for the inherent dignity of the human person (article 10), the right to a fair trial (article 14), the right to non-discriminatory application of the rights recognized in the treaty (article 2), the right to effective remedy for violations of rights in the treaty (article 2), and the right to be free from arbitrary detention (article 9). The US Supreme Court has said that the ICCPR "does bind the United States as a matter of international law".(40)

The ICCPR, ratified by 160 countries, provides the mechanism to protect against arbitrary detention and other violations, namely the right of every detainee to challenge the lawfulness of his or her detention in an independent, impartial and competent court and to release if that court finds that the detention is unlawful (article 9.4). Courts examining the lawfulness of detention must decide the issue "without delay" (article 9.4). The Human Rights Committee has stressed that "in particular the important guarantee laid down in paragraph 4, i.e. the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention," not just those facing criminal charges.(41) In the USA the right to challenge the lawfulness of detention, and to seek remedy, is invoked by application for a writ of habeas corpus. Suspension of habeas corpus, a US Supreme Court Justice wrote half a century ago, would be "sufficient to introduce emergency government with about all the freedom from judicial restraint that any dictator could ask".(42)

The Human Rights Committee is the expert body established by the ICCPR to monitor implementation of and compliance with this treaty. The Committee has made it clear that there are "no circumstances" that states may invoke "as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance… through arbitrary deprivations of liberty". (43) It has also stressed that "a State party may not depart from the requirement of effective judicial review of detention" (emphasis added).(44) Even "if so-called preventive detention is used, for reasons of public security,… it must not be arbitrary, and must be based on grounds and procedures established by law (ICCPR art. 9.1), information of the reasons must be given (art. 9.2) and court control of the detention must be available (art. 9.4) as well as compensation in the case of a breach (art. 9.5)."(45)

In July 2006, the Human Rights Committee called on the USA to ensure, in accordance with article 9(4) of the ICCPR, that:

"persons detained in Guantánamo are entitled to proceedings before a court to decide without delay on the lawfulness of their detention or order their release if the detention is not lawful. Due process, independence of the reviewing courts from the executive branch and the army, access of detainees to counsel of their choice and to all proceedings and evidence, should be guaranteed in this regard."(46)

"This does not of course mean that none of the persons held at Guantánamo Bay should have been deprived of their liberty. Indeed, international obligations regarding the struggle against terrorism might make the apprehension and detention of some of these persons a duty for all States. Such deprivation of liberty is, however, governed by human rights law, and specifically articles 9 and 14 of the ICCPR. This includes the right to challenge the legality of detention before a court in proceedings affording fundamental due process rights, such as guarantees of independence and impartiality, the right to be informed of the reasons for arrest, the right to be informed about the evidence underlying these reasons, the right to assistance by counsel and the right to a trial within a reasonable time or to release. Any person deprived of his or her liberty must enjoy continued and effective access to habeas corpus proceedings, and any limitations to this right should be viewed with utmost concern."(47)

"The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action… The scope and flexibility of the writ – its capacity to reach all manner of illegal detention – its ability to cut through barriers of form and procedural mazes – have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected."(48)

A government’s vague or shifting description of the legal basis for detentions would highlight the urgent need for habeas corpus to protect detainees from arbitrary detention and other violations. In the absence of judicial oversight, the status of the Guantánamo detentions has indeed shifted. In May 2006, the administration told the UN Committee Against Torture that the detainees were held pursuant to the Military Order signed by President Bush on 13 November 2001.(50) This was entirely contrary to what it had argued in federal District Court in Rasul v. Bush, when it categorically denied that any detainee was held under the Military Order, and asserted instead that they were held more generally under the President’s Commander-in-Chief powers. Indeed, in the month before the Rasul ruling, Deputy Secretary of Defense Paul Wolfowitz issued an Order on administrative review procedures which stated that "enemy combatants whom the President has determined to be subject to his Military Order of November 13, 2001 are excepted from the procedures established in this Order until the disposition of any charges against them or the service of any sentence imposed by a military commission".(51) At this time, only six detainees had been made subject to the Military Order.(52) On 7 July 2004 – after the Rasul ruling – another nine were added to this list "bring[ing] to 15 the number of detainees that the President has determined are subject to his military order".(53)

A lack of precision over detainee numbers raised the possibility that individual detainees could be moved to and from the base, or between different US agencies, including into secret detention, without any public knowledge of such transfers, in violation of international law or standards.(54) In the absence of judicial oversight, the numbers and identities of detainees, and who was transferred into and out of the base, remained unknown for a prolonged period. On 29 January 2004, two years after the detentions began, the Pentagon announced that, to that date, 91 detainees had been released or transferred from the base. However, it had only publicly announced the movement of 73 detainees (see appendix). It took four years and required court action before the USA named detainees held in the base. Even then, the numbers did not add up. The authorities released a list of 759 names of people held in Department of Defense custody at the base between January 2002 and 15 May 2006. However, on 18 May 2006 the Pentagon stated that 287 detainees had been released or transferred from the base and "approximately 460" remained there – a total of 747. The authorities continue to provide only approximate statistics. Thus, when the Pentagon announced on 28 September 2007 that a detainee had been transferred to Mauritania, it claimed that "approximately 435 detainees have departed Guantánamo for other countries".(55) In its next announcement, the following day, the Pentagon stated that the transfer of eight detainees meant that "approximately 445" detainees had now left the base.(56)

In the absence of judicial oversight, the indefinite and isolating detention regime at Guantánamo has amounted to cruel, inhuman and degrading treatment.(57) In February 2007, for example, Uighur detainee Ali Mohammed was

"held in isolation in Camp 6, a ‘super-max’ prison, at least 22 hours a day. He never sees direct sunlight and has no access to fresh air. During his two hours per day of ‘recreational time (which on alternating days, is in the middle of the night), Ali is placed in a cage where he can sometimes see other prisoners but is punished if he tries to touch or greet them. He is compelled to complain to get clean clothes. He is denied privacy when he uses the toilet; even female guards can see him. His food and drinks are always cold. He eats every meal alone. Like all Guantanamo prisoners, he is not allowed any visitors other than occasional trips by counsel and the Red Cross, and he is not allowed to make phone calls. As [the US Supreme] Court recently affirmed, even convicted murderers cannot be made to endure conditions like these without first providing them the benefit of due process".(58)

"I was escorted into the new, headache white, facility and brought to the tiny room where my client was waiting for me. The windowless six-by-six (feet) closet-size room had two chairs and a table. Mr Al-Ghizzawi was stooping low to the floor and huddled against the wall when I entered. His arms were wrapped around his body as he tried to warm himself from the chill he has had for over two months, and his feet were shackled to the floor…. I observed that the total isolation of camp 6 was having a profound effect on Mr Al-Ghizzawi’s mental as well as physical health."(59)

"Perhaps most distressing to me was my observation that Mr Al-Ghizzawi’s mental health had noticeably deteriorated since my last visit. He confessed that in his total isolation he had begun talking to himself. He recognized that this was a sign of a fraying mental state and he was very distraught over his condition. He seemed to have great difficulty maintaining focus and concentrating on the conversation".(60)

In the absence of judicial oversight, it was more than two and a half years before any of the Guantánamo detainees were able to gain access to lawyers. The first visit by counsel in relation to habeas corpus litigation following the Rasul ruling took place in August 2004. No detainee has had access to a lawyer during interrogation. Denial of access to legal representation has been a part of the coercive detention regime, of concern not least because information obtained in interrogations could be used in military commission trials. On 27 February 2002 – five years ago – the Secretary of Defense said that the USA was beginning the process of interrogating with a view to possible prosecution.(67) A previously classified report on interrogations noted that "one of the Department of Defense’s stated objectives is to use the detainees’ statements in support of ongoing and future prosecutions".(68)

Also in the absence of judicial oversight, the government has formulated and operated unfair trial procedures. Ten detainees were charged for trial by military commissions established under the Military Order signed by President Bush in November 2001. That military commission scheme was found unlawful in June 2006 by the US Supreme Court after considering a habeas corpus challenge brought on behalf of one of the 10, Yemeni detainee Salim Ahmed Hamdan.(69) With a revised, but still fundamentally flawed, military commission process now authorized by Congress under the MCA, it is crucial that those who are charged for trial must be able to challenge the lawfulness of these revised commission procedures before an independent, impartial and competent court, characteristics which the commissions (and the new Court of Military Commissions Review) themselves lack.(70)

The example the denial of habeas corpus sets is a dangerous one, as the US government itself has, in effect, noted. Under "arbitrary arrest or detention" in its 2004 report on human rights in other countries during 2003, the US State Department criticized Malaysia’s Internal Security Act (ISA) for allowing detention "without judicial review or the filing of formal charges". The State Department reported that "Special security prisoners were detained in a separate detention center. In 2003, a number of persons released from detention under the ISA claimed that during the initial stages of their detention they were subjected to intensive interrogation and disoriented by isolation, deliberately interrupted sleep, and abusive treatment by police." The State Department also noted that the Malaysian authorities had sought to justify the detention regime on the grounds that the implementation by "foreign governments" of preventive detentions to combat terrorism "underscored" Malaysia’s continued need for the ISA.(71) What the State Department report failed to specify, however, was that in 2003, Malaysia’s minister of law had justified his country’s preventive detention practice as "just like the process in Guantánamo Bay".(72)

The following year, in a judicial opinion issued not long after the US Supreme Court’s Rasul v. Bush judgment on Guantánamo, the President of the Inter-American Court of Human Rights wrote:

The Anglo-Saxon term due process – translated in some countries as "garantías esenciales del procedimiento" [essential procedural guarantees] – is one of the most formidable tools for protection of rights… It enables or realizes effective judicial protection. It involves access to formal justice, such as a hearing, evidence, and pleadings, and to material justice, as the means to obtain a just judgment…We had gained much ground in the endeavor for due process…, yet now we must note, once again, that no progress is definitive… and that a disturbing erosion of human rights has begun to take place in the scope of the proceeding. Persistence of old forms of crime, the appearance of new expressions of crime, systematic attacks by organized crime, the extraordinary virulence of certain extremely grave crimes – such as terrorism and drug trafficking – have determined a sort of ‘exasperation or desperation’ which is ill-advised: it suggests setting aside progress and going back to systems or measures that already demonstrated their enormous ethical and practical flaws. In one of its extreme versions, this has generated phenomena such as the ‘Guantanamonization’ of the criminal proceeding, recently questioned by the jurisprudence of the Supreme Court of the United States itself."(73)

3. Habeas corpus – part of accountable government

By framing its response to the attacks of 11 September 2001 in terms of a global "war", conducted under the President’s constitutional authority as Commander in Chief of the Armed Forces and his authority to conduct "foreign affairs", the administration has demanded deference from the judiciary, and has undermined the rule of law in the process. Under this "war" framework the administration took the position that the President was essentially unconstrained by US or international law. For example:

"Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon… [D]eterminations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response…, under our Constitution, are for the President alone to make".(77)

"[A]ny presidential decision in the current conflict concerning the detention and trial of al Qaeda or Taliban militia prisoners would constitute a controlling Executive act that would immediately and completely override any customary international law norms… [A]llowing the federal courts to rely upon international law to restrict the President’s discretion to conduct war would raise deep structural problems…The power to override or ignore customary international law, even the law applying to armed conflict, is an integral part of the President’s foreign affairs power".(78)

"We conclude that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate [the prohibition on torture under US law]".(79)

"Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we… conclude that [the US law prohibiting torture abroad] does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority".(80)

"Under the government’s theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and these detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or that it was summarily executing the detainees. To our knowledge, prior to the current detention of prisoners at Guantánamo, the US government has never before asserted such a grave and startling proposition… a position so extreme that it raises the gravest concerns under both American and international law."(81)

The US administration appears to agree – but only in the case of other countries. It has routinely condemned detention without judicial review when it has occurred at the hands of other governments, including those it describes as "totalitarian" (Cuba), "theocratic" (Iran), "dictatorship" (North Korea), and "authoritarian" (Belarus, China, Syria and Uzbekistan).(83) In his address to the UN General Assembly on 25 September 2007, President Bush stated that "in Belarus, North Korea, Syria, and Iran, brutal regimes deny their people the fundamental rights enshrined in the Universal Declaration [of Human Rights]". The US State Department’s most recent human rights report contains the following entries:

• Belarus: "the law limits arbitrary detention; however, the government did not abide by these limits… Detainees have the right to petition the legality of their detention; however, in practice, appeals by suspects seeking court review of their detentions were frequently suppressed or ignored."(84)
• China: "arbitrary arrest and detention remained serious problems… Public security organs do not require court-approved warrants to detain suspects under their administrative detention powers. After detention, the procuracy can approve formal arrest without court approval."(85)
• North Korea: "Members of security forces arrested and transported citizens to prison camps without trial. There were no restrictions on the government’s ability to detain and imprison persons at will or to hold them incommunicado… Judicial review of detentions did not exist in law or in practice."(86)
• Syria: "the 1963 Emergency Law authorizes the government to conduct preventive arrests and overrides constitutional and penal code provisions against arbitrary arrest and detention, including the need to obtain warrants. In cases involving political or national security offenses, arrests were often carried out in secret with cases assigned in a seemingly arbitrary manner to military, security or criminal court personnel. Suspects were detained incommunicado for prolonged periods without charge or trial and denied the right to a judicial determination regarding pretrial detention."(87)
• Cuba: arbitrary detention continued, with "government officials routinely… deny[ing] due process to persons detained on purported state security grounds."(88)
• Uzbekistan: arbitrary detention remained a problem, not least because "there is no judicial determination of detention."(89)
• Iran: arbitrary arrest and detention remained common because "in practice, there is neither a legal time limit for incommunicado detention nor any judicial means to determine the legality of the detention."(90)

Almost 30 years ago, in the case brought against Iran by the USA in the International Court of Justice after US embassy personnel in Tehran were taken captive in November 1979, the US government stated:

"It is not necessary for the purposes of this case to define precisely what is required by an internationally recognized minimum standard of treatment. Whatever the outer limits of the law may be, it is well established that, at its core, it means that aliens are entitled to be free from arbitrary or discriminatory arrest and detention and must not be treated in a cruel, inhuman or degrading manner".

"The existence of such fundamental rights for all human beings, nationals and aliens alike, and the existence of a corresponding duty on the part of every State to respect and observe them, are now reflected, inter alia, in the Charter of the United Nations, the Universal Declaration of Human Rights and corresponding portions of the International Covenant on Civil and Political Rights, regional conventions and other instruments defining basic human rights…"(91)

"Customary law is constantly evolving, thus implying that states can modify their practices to adapt to new or unanticipated circumstances or challenges… Even if customary international law proscribed ‘prolonged arbitrary detention’, it is not at all clear that [the Guantánamo detentions] fall within this rubric. The detention here is not arbitrary, but based on the Military’s determination that petitioners are enemy combatants. The treaties cited by petitioners as evidence of customary international law do not appear to deal with wartime detentions of this type, but rather with criminal-like matters, and petitioners cite no clear evidence of a consistent and widespread norm, followed as a matter of legal obligation, that detention of enemy combatants in a worldwide war against a terrorist organization is improper."(93)

Under the administration’s global "war" framework, "the determination of who are enemy combatants is a quintessentially military judgment entrusted primarily to the Executive Branch." (94) The executive has argued in the courts that it has "a unique institutional capacity to determine enemy combatant status and a unique constitutional authority to prosecute armed conflict abroad and to protect the Nation from further terrorist attacks. By contrast, the judiciary lacks the institutional competence, experience, or accountability to make such military judgments at the core of the war-making powers."(95) This contention is necessarily undercut by the fact that the detentions at issue here are years old and conducted thousands of miles from any zone of hostilities. None of the detainees are nationals of countries at war with the USA. Many were picked up far from any battlefield.

This will be allowed to continue if the interpretation of the Military Commissions Act by the DC Circuit Court of Appeals in its February 2007 Boumediene decision is upheld. "Quite simply", as one of the legal briefs filed in the Supreme Court on behalf of the Guantánamo detainees puts it, "the DC Circuit opinion authorizes the US government to establish offshore prison camps far removed from any battlefield that are totally outside the law."(96)

The administration’s attempt to keep those it labels as "enemy combatants" as far from the courts as possible explains the choice of Guantánamo as a detention centre. It chose the Naval Base in Cuba upon Justice Department advice in December 2001 that under existing constitutional law the federal courts could not "properly entertain an application for a writ of habeas corpus by an enemy alien" captured abroad and detained in the base because it was not "sovereign" US territory. (99) In the words of a former Assistant Attorney General, "because [Guantánamo] was technically not a part of US sovereign soil, it seemed like a good bet to minimize judicial scrutiny". (100) The USA occupies the base under a 1903 Lease Agreement with Cuba. Under the Agreement, "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas]," while "the Republic of Cuba consents that during the period of the occupation by the United States ... the United States shall exercise complete jurisdiction and control over and within said areas" (emphasis added). As Justice Kennedy wrote in the 2004 Rasul opinion, under this lease, the USA has long exercised "unchallenged and indefinite control" over the base. (101) In other words, "Guantanamo Bay is in every practical respect a United States territory."(102)

The government’s brief to the Supreme Court in October 2007 in the Boumediene case nevertheless continues to push the sovereignty issue: "It is beyond dispute that Cuba, not the United States, possesses sovereignty over Guantánamo Bay".(103) Yet under international law this fact is irrelevant to the rights of the detainees. Indeed, the notion that a government can deny rights to those in places under its jurisdiction or control that it would guarantee to those on its sovereign territory has been described by the UN Human Rights Committee, the ICCPR’s authoritative interpreter, as "unconscionable".(104) Such an approach strips international law of its protections and sets a destructive example for other governments to follow. Article 2.1 of the ICCPR provides that the scope of this treaty’s application should extend to "all individuals within its territory and subject to its jurisdiction". The International Court of Justice has found that this provision "did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their national territory."(105) The Human Rights Committee has similarly said that "a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party." (106)

The US government maintains that "the obligations assumed by a State Party to the International Covenant on Civil and Political Rights apply only within the territory of the State Party".(107) It has repeated this in its brief to the US Supreme Court in October 2007, seeking to have the Court uphold the MCA’s habeas-stripping provisions.(108) The UN Human Rights Committee has rejected this interpretation of the ICCPR, and has called upon the USA to "acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war".(109)

Although Guantánamo was chosen by the administration on the grounds that US precedent restricts the applicability of the Constitution in the case of federal government actions outside the USA concerning foreign nationals, the administration has promoted an even broader notion of executive detention power. It has applied the "enemy combatant" label to two US nationals held in the USA (Yaser Hamdi and Jose Padilla, since released or transferred from military custody after adverse judicial rulings, see below) and to a foreign national legally resident in the USA. This latter case involves Qatari national Ali Saleh Kahlah al-Marri, who has been held in indefinite military detention on the US mainland since June 2003 on the basis of an executive order signed by President Bush designating him as an "enemy combatant".

In June 2007, a three-judge panel of the US Court of Appeals for the Fourth Circuit ruled that the habeas-stripping provision of the Military Commissions Act does not apply to Ali al-Marri, and after consideration of this detainee’s habeas corpus petition, ordered that his military detention "must cease".(111) The urgent concern that the Fourth Circuit expressed about the assertion of executive power mirrors that expressed by the Ninth Circuit four years earlier (above). In its ruling, the Fourth Circuit said:

"[A]ccording to the government, the President has ‘inherent’ authority to subject persons legally residing in this country and protected by our Constitution to military arrest and detention without the benefit of any criminal process, if the President believes that these individuals have ‘engaged in conduct in preparation for acts of international terrorism’. This is a breathtaking claim, for the government nowhere represents that this ‘inherent’ power to order indefinite military detention extends only to aliens or only to those who ‘qualify’ within the ‘legal category’ of enemy combatants… The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention… To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them ‘enemy combatants’, would have disastrous consequences for the Constitution – and the country… It is that power – were a court to recognize it – that could lead to all our laws to go unexecuted, and the government itself to go to pieces. We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic".(112)

At his CSRT hearing in April 2007 in Guantánamo, Majid Khan said: "It has been four years. Can the United States government call me a terrorist and not yet, and not yet charge me? What is stopping them?" Rejecting the government’s labelling of him as an "enemy combatant", he said that he should be given a proper trial rather than administrative review by a Combatant Status Review Tribunal. The CSRT cannot provide any remedy, such as ensuring the initiation of fair trial proceedings – indeed a CSRT decision of "enemy combatant" leaves a detainee exposed to the possibility of unfair trial by military commission.

Despite being transferred to Guantánamo for the stated purpose of bringing him to trial, neither Khan nor the other 13 men transferred with him had been charged more than a year later.(115) The USA continues to undermine the presumption of innocence. Announcing that Majid Khan was being granted access to legal counsel for the purpose of having his CSRT classification as an "enemy combatant" reviewed under the DTA, the Pentagon emphasised that "Khan exemplifies the significant and genuine threat that the United States and other countries face throughout the world."(116)

Fifty years ago, the US Supreme Court stated that "Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience."(117)

The CSRT scheme provides the administration with a convenient façade of process. It provides the detainees and their families with nothing but more injustice. All detainees should be able to challenge the lawfulness of their detention directly in a court of law. Anyone against whom there is evidence of criminal wrongdoing should promptly be charged with recognizable criminal offences and brought to a full and fair trial in accordance with international standards, or else released.

The UN General Assembly has called on all States, "while countering terrorism, to ensure due process guarantees, consistent with all relevant provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Geneva Conventions of 1949, in their respective fields of applicability". It has expressed its opposition to "any form of deprivation of liberty that amounts to placing a detained person outside the protection of the law" and has urged all States to "respect the safeguards concerning the liberty, security and dignity of the person and to treat all prisoners in all places of detention in accordance with international law".(118)

Habeas corpus review is a fundamental safeguard protecting against abuse by providing an independent check on executive action. The CSRT, in contrast, set up and run by the branch of government responsible for the alleged human rights violations, allows abuse to continue, is able to turn a blind eye to illegality, and facilitates impunity. The CSRT, in other words, serves to undermine the rights that habeas corpus is meant to protect.

4. CSRT: A façade of process to avoid judicial scrutiny

When the US Supreme Court ruled in Rasul v. Bush on 28 June 2004 that the US courts, at least under statutory law, did have jurisdiction to consider challenges to the legality of the detention of the Guantánamo detainees, and that "aliens, no less than American citizens, are entitled to invoke the federal courts’ authority under [the federal statute]", the administration was forced to adjust its approach. However, although the Supreme Court emphasised that "at its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"; that the "historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"; and that "application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus", the administration did not accept habeas corpus as it had historically functioned. Instead it fashioned the narrowest possible adjustment to its offshore detention regime, based on another ruling that the Supreme Court handed down on 28 June 2004, Hamdi v. Rumsfeld.

That second case involved Yaser Esam Hamdi who had been captured in Afghanistan in late 2001 before being transferred to Guantánamo in January 2002. Three months later, upon discovering that he was a US citizen, the authorities transferred him to the mainland where he was held in indefinite military detention as an "enemy combatant". In Hamdi, the Supreme Court ruled that "although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker".(123) Although the Hamdi majority emphasised that "a state of war is not a blank check for the President", its ruling opened a door through which an administration pursuing the demolition of habeas corpus in the "war on terror" stepped, focussing on "procedural" rather than substantive rights:

"The Justice Department is pleased that the US Supreme Court today upheld the authority of the President as Commander-in-Chief of the armed forces to detain enemy combatants… The Court also held that individuals detained by the United States as enemy combatants have certain procedural rights to contest their detention. But the Court recognized that those procedures must reflect the unique context of the detention of enemy combatants and the need of the executive to prosecute the war. We are reviewing the Courts decision to determine how to modify existing processes to satisfy the Court’s rulings."(124)

Amnesty International regrets that the Supreme Court’s Hamdi ruling provided this opportunity to an administration that was seeking to avoid judicial scrutiny in a situation that it defined as a global armed conflict to which its version of the laws of war applied and human rights law did not. The organization also regrets that the Rasul judgment was so narrowly framed. One of the first two federal judges to interpret the Rasul ruling noted that she "would have welcomed a clearer indication in the Rasul opinion regarding the specific constitutional and other substantive rights" of the Guantánamo detainees.(126) Over three years later, and almost six years into the Guantánamo detentions, due process and justice are long overdue.

The administration could have responded to the Rasul and Hamdi rulings with a fundamental change in direction and recognition not only of the USA’s international human rights obligations but of its constitutional origins in which the "establishment of the writ of habeas corpus" would serve as a protection against arbitrary executive detention, one of the "favourite and formidable instruments of tyranny".(127) It chose not to. Instead, it viewed the rulings handed down on 28 June 2004 as ones that simply "defined the landscape for future litigation involving military detention of enemy combatants".(128) While that litigation slowly progressed through the courts over the ensuing years, the detainees would remain entirely at the whim of the executive.

The former head of the Justice Department’s Office of Legal Counsel has characterized the Hamdi and Rasul rulings as "really little more than slaps on the wrist" which "did not at that time require the President to alter many of his actions". Instead, Jack Goldsmith has suggested: "What the Court really did was send a signal to the President that GTMO could not be a law-free zone, that the President did not have a ‘blank check’ to conduct the war on terrorism, and that the Court was willing to step in to do more if the executive did not get its legal house in better order".(129) The time has surely come for the US Supreme Court to restore the rule of law.

Nine days after the Rasul and Hamdi rulings, the Department of Defense announced the formation of the Combatant Status Review Tribunal, to provide Guantánamo detainees with administrative review of their detentions in a system "modelled on the tribunals created under Article 5 of the Third Geneva Convention, implemented by Army Regulation 190-8".(130) On 7 July 2004, Deputy Secretary of Defense Wolfowitz issued the Order establishing the CSRT, and on 29 July, Navy Secretary Gordon England, who had been "appointed to operate and oversee this process", issued a memorandum with a more detailed set of procedures that would apply to the CSRTs, and which remain applicable today.(131) The first CSRT hearing was conducted on 30 July 2004, in the case of an unidentified detainee who "elected to appear in person before the tribunal and did not call any witnesses".(132)

A senior Justice Department official admitted that the CSRTs were taking the US authorities into "uncharted territory to figure out what sort of process would be sufficient".(133) This uncharted territory would consist of panels of three military officers who were "not bound by the rules of evidence such as would apply in a court of law" and could consider any information – including classified, hearsay, and information coerced under torture or other ill-treatment – in making their determination as to whether, by a "preponderance of the evidence", the detainee was "properly detained as an enemy combatant". The detainee – thousands of miles from home, virtually cut off from the outside world, held for years and facing a culturally and linguistically unfamiliar administrative proceeding – would neither have access to a lawyer nor be entitled to have access to or know the details of any classified evidence used against him.

In the absence of any independent judicial component, it is the executive which decides what information or which witnesses are "reasonably available", and what information is classified and therefore inaccessible to the detainee. The CSRT is authorized to "request the production of such reasonably available information in the possession of the US Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant" (known as "Government Information"). A central role is played by the "Recorder", a US military officer, "preferably" a military lawyer. According to Lt. Col. Stephen Abraham, however,

"The Recorders of the tribunals were typically relatively junior officers with little training or experience in matters relating to the collection, processing, analyzing, and/or dissemination of intelligence material. In no instances known to me did any of the Recorders have any significant personal experience in the field of military intelligence. Similarly, I was unaware of any Recorder having any significant or relevant experience dealing with the agencies providing information to be used as a part of the CSRT process."(134)

"The role of the recorder differed from hearing to hearing. The general role of the recorder was to generate the evidence to present to the CSRT panel. Some of the recorders would just present a stack of documentary evidence and ask the panel members to review it. Other recorders took a much more prosecutorial position… It was generally known that the recorders had the most difficult job in the process and were overwhelmed… The recorders did not have much control over the content of the information to be presented to the CSRT hearings. Much of the material presented was supplied by intelligence agencies and were summaries that were not necessarily justified by the underlying evidence."(135)

"There was no exculpatory evidence presented separately, as required in the CSRT rules, in any CSRT hearing that I sat on. From time to time, the CSRT panels did encounter exculpatory evidence by accident because some of the evidence presented by the recorder would contradict the allegations made against the detainee".(136)

In its April 2005 brief to the DC Court of Appeals appealing her ruling, and in testimony to Congress, the government emphasised these 38 cases as a sign of a fair system. It repeated this emphasis in its brief to the Court of Appeals in April 2007 seeking the narrowest possible judicial review of CSRT decisions, and to Congress in July 2007 seeking to justify its detention policies.

	CSRT hearings	Final decisions	Not "enemy combatant"
August 2004	42	19	0
September 2004	52	34	1
October 2004	129	48	0
November 2004	205	60	0
December 2004	79	69	1
January 2005	51	135	1
District Court Judge rules that CSRTs are unfair
February 2005	0	93	15
March 2005	0	100	20
Total	558	558	38

In its October 2007 brief in Boumediene v. Bush to the Supreme Court seeking to have the Court uphold the MCA’s stripping of habeas corpus, the administration does not point out that 520 detainees were confirmed as "enemy combatants", choosing instead to highlight that "the CSRT process has led to determinations that 38 now-released detainees were no longer enemy combatants". It goes on to reiterate later in the brief that "far from being a rubber stamp, the CSRT process has led to favourable determinations for 38 detainees", and any argument that the CSRTs lack independence from the executive ignores these "dozens of cases in which favourable determinations were made for detainees".(137) The Department of Defense has likewise recently stressed that "all detainees at Guantánamo Bay have been through the CSRT process, and dozens have been found to no longer be enemy combatants and released or transferred to their home countries". This has also been highlighted as proof that "the CSRT’s are working" in a brief just filed in the Supreme Court in support of the government’s position.(138)

Clearly these 38 NLEC decisions have become important to the government. Yet none of these legal briefs to the courts or the testimony to Congress has pointed out that all but three of the NLEC decisions had been decided after Judge Green’s finding that the CSRT scheme denied detainees a fair opportunity to challenge their detention.(139) Prior to her ruling, 0.8 per cent of the CSRT’s decisions were "NLEC" (three out of 365). After the ruling, this rose to 18 per cent (35 out of 193), a rate more than 20 times greater. If the 0.8 per cent rate of NLEC findings had continued beyond Judge Green’s ruling, and throughout the process, only about five detainees would have received favourable decisions (or if the 18 per cent rate had applied throughout, approximately 100 NLEC decisions would have been handed down). In any event, the impression left was of a system of administrative review that could be manipulated to suit the ends of the administration.

Amnesty International acknowledges that the sudden spate of NLEC decisions following Judge Green’s decision against the CSRT system could have been purely coincidental. It is appropriate, then, to consider if there are any other indications that the administration has sought to manipulate detainee cases to bypass judicial scrutiny. There is a disturbing pattern. For example:

• Jose Padilla was arrested at Chicago Airport in May 2002 on the suspicion of plotting to detonate a radioactive "dirty" bomb against a US target. On the basis of an executive order signed by President Bush on 9 June 2002, he was transferred from civilian to military custody two days before there was to be a court hearing on his case. He was held without charge or trial in military custody for the next three and a half years. The Pentagon announced it was granting him access to a lawyer nine days before the Supreme Court agreed to take the appeal challenging the lawfulness of his detention, 20 months after he had been put in incommunicado military custody.(140) The Court ultimately did not review the case, on the grounds that it had been filed in the wrong jurisdiction. In November 2005, with the question of the lawfulness of his detention again pending before the Supreme Court, President Bush issued a memorandum to the Secretary of Defense authorizing Padilla’s transfer back to Justice Department custody to face criminal charges (not including any reference to a "dirty" bomb plot), and the government moved to have the Supreme Court dismiss consideration of the case. The Court did so over the dissent of three Justices. Three other Justices who agreed with dismissing the case acknowledged that "Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts".(141)
• Qatar national Ali Saleh Kahlah al-Marri was due to go to trial on 21 July 2003 in an ordinary US federal court on charges of credit card fraud and making false statements to the FBI. On Friday 20 June 2003, the judge scheduled a hearing on pre-trial motions, including a motion to suppress evidence against Ali al-Marri allegedly coerced under torture. On the following Monday, 23 June 2003, before the hearing could be held, the government moved to have the indictment dismissed, and transferred Ali al-Marri to military custody on the basis of an executive order signed that morning by President Bush designating al-Marri as an "enemy combatant" by executive order. Over four years later, Ali al-Marri remains in untried military custody in the USA. For the first 16 months of this custody, he was held entirely incommunicado, during which time he was allegedly subjected to torture or other ill-treatment.
• Ahmed Omar Abu Ali, a dual US/Jordanian national, was held for nearly two years in incommunicado detention in Saudi Arabia, allegedly at the behest of the US government. His parents filed a petition for a writ of habeas corpus in the US District Court claiming that the administration wanted to keep him so detained in order that he could be held and interrogated free from constitutional constraints. In a ruling in late 2004, Judge John Bates pointed out that there was "at least some circumstantial evidence that Abu Ali has been tortured during interrogations with the knowledge of the United States".(142) Judge Bates ordered further "jurisdictional discovery" under which the government would have to present evidence to confirm or refute the allegations made by the petitioners, which Judge Bates described as "considerable" and almost entirely unrebutted by the government. He ordered that the two parties submit a proposal of how they would go forward by 10 January 2005. Rather than respond to the discovery order, after more than a year-and-a-half of detention without charge or trial, the authorities transferred 23-year-old Ahmed Abu Ali back to the USA. He arrived back in the United States on 21 February 2005 to face various terrorism-related charges.(143)
• The Pentagon only allowed Yaser Hamdi access to a lawyer in late 2003 after he had been in detention for two years and, notably, only four weeks before the US Supreme Court would announce whether it would review the lawfulness of his detention.(144) After the Hamdi ruling, in late August 2004, a federal judge ordered the government to explain why Yaser Hamdi was still being held in indefinite solitary confinement, as he had been held for more than two years. District Judge Robert Doumar ruled that such treatment "without question", raised issues under the constitutional ban on "cruel and unusual punishment".(145) In a further order in early October 2004, Judge Doumar expressed concern that three months since the Supreme Court’s ruling, the detainee had not been provided "with a hearing of any kind by this Court, the military, or any other tribunal."(146) Judge Doumar ordered that either Yaser Hamdi be released or a hearing on the merits of his habeas corpus petition would be heard in his court on 12 October 2004, a hearing at which the government would have to produce Yaser Hamdi. On 11 October, the government released the detainee and transferred him to Saudi Arabia under a deal in which among other things, Hamdi renounced his US citizenship.(147)
• Late on a Friday afternoon in October 2004, the government told the US District Court that Yemeni detainee Salim Hamdan had been moved out of the solitary confinement in Guantánamo in which he had been held for the previous 10 months. The Court had been due hear oral arguments the following Monday to consider the "urgent and striking claim" brought on behalf of Hamdan in a habeas corpus petition that this solitary confinement regime amounted to inhumane treatment. The judge stated that although the government was "capable of repeating" the solitary confinement regime, its announcement that it had moved Hamdan meant that the court could not review the claim.
• On 11 January 2005, five days after allegations of the earlier rendition to Egypt and torture of Guantánamo detainee Mamdouh Habib were made public in documents filed in habeas corpus proceedings in District Court, the Pentagon announced that this Australian detainee – taken into custody in Pakistan in October 2001 – would be transferred from Guantánamo to Australia. Mamdouh Habib was flown to Australia two weeks later and released. According to the New York Times, Australian officials said that "the Bush administration told the Australians in January [2005] that it would not prosecute him because the CIA did not want the evidence about Mr. Habib being taken to Egypt, and his allegations of torture, raised in court".(148)
• On 22 December 2005 a federal judge ruled that the continued indefinite detention of two Uighur detainees, Abu Bakker Qassim and Adel Abdul Hakim, nine months after they had been found to be "no longer enemy combatants" by CSRTs at Guantánamo, was unlawful, but the judge decided that he could provide no remedy.(149) The case was scheduled to be argued in the DC Court of Appeals at 9.30am on Monday 8 May 2006. At 4.30pm on Friday 5 May 2006, the detainees’ lawyers received a telephone call from the Department of Justice informing them that their clients, along with three other Uighur detainees, had been transported to Albania, where they had landed about one hour earlier. At 4.39pm on 5 May 2006, the administration filed an emergency motion in the District Court arguing that the case should be dismissed as moot because the detainees were now in Albania. It transpired that the detainees had been told by their military captors on or around 2 May 2006 that they were going to be sent to Albania, but had no way of contacting their lawyers. The lawyers had been informed "by highly placed sources that two western governments, each of which has a Uighur expatriate population, had made substantial progress toward a resettlement of the Uighurs in those countries prior to May 5, 2006. Yet the Executive elected to send the men to one of the poorest countries in Europe, a place with no real economic prospects for the men, and where the men have no family, friends, common language, or point of reference".(150)

Amnesty International considers that such examples indicate an administration that was not only pursuing a broad strategy aimed at avoiding meaningful judicial review, violating the rights of a whole category of detainees in the process, but one that has also been willing to exploit the cases of individual detainees to serve this end.

The former head of the Justice Department’s Office of Legal Counsel (2003-04) has recently written that: "When the executive branch acts outside the reach of the courts…, it is both law interpreter and law enforcer, and runs the danger… of interpreting the law opportunistically to serve its own ends".(151) He further revealed that "whenever the Supreme Court threatened to review one of the administration’s terrorism policies, Paul Clement [then Deputy Solicitor General, now Solicitor General] was able to eke out small concessions from the White House". (152)

With this in mind, the pattern of public announcements relating to detainees, including in relation to releases and transfers into and out of Guantánamo, and the timing of charging decisions – all of which have to date been entirely controlled by the executive – may reveal further evidence of self-serving executive action. This pattern is one of increased, publicly-announced, activity relating to "process" provided to detainees in periods leading up to crucial judicial interventions (see appendix). For example:

• In early March 2004, after more than two years of detentions, with oral argument in the US Supreme Court on the Rasul case only six weeks away, the Pentagon issued a draft administrative review process for Guantánamo detainees, stating that it expected the procedures to be finalized "in a few weeks".(153) On 18 May 2004, the Pentagon announced that the Deputy Secretary of Defense had signed an Order establishing an annual administrative review process for the Guantánamo detainees, and on 23 June 2004, five days before the Rasul ruling, the Secretary of the Navy held a press conference at which he announced that he had been designated to oversee the administrative review process. Two and a half years after the detentions began at the base, Secretary England said that "we are anxious to start this process".(154) In the end, the "discretionary" annual Administrative Review Board (ARB) scheme was not implemented until 14 September 2004 and the first ARB was held in mid-December 2004, nearly three years after detentions began (see further below).
• Until the Rasul v. Bush case concerning whether the courts had jurisdiction to consider habeas corpus petitions filed on behalf of Guantánamo detainees had been decided by the DC Circuit Court of Appeals and was to be appealed to the Supreme Court, the Pentagon announced the release or transfer of four foreign detainees from the base over a period of 14 months.
• In the five months between the Supreme Court agreeing to consider the Rasul case and submission of written and oral arguments in the Court, at least 78 detainees were transferred or released. In the six weeks before oral argument, 46 detainees were released. In its brief to the Court, the administration emphasised the number of releases and the "thorough process" of review;(155)
• In the more than two months between oral arguments in the Rasul case in the Supreme Court and the Court’s ruling in the case – that is, after all the briefing to the Court was completed – not a single detainee was released or transferred from Guantánamo.(156)
• On the same day, 11 July 2005, that the Supreme Court agreed to hear the Hamdan v. Rumsfeld case challenging the lawfulness of the military commission system, five Guantánamo detainees were charged for trial by military commission. This was more detainees than had been charged in the past three and a half years, and came 16 months after the last detainee (Salim Hamdan) was charged. (157)

A federal court has suggested that the administration has manipulated the CSRT process. In 2007, in the case of Ali al-Marri, the Qatari national held in indefinite military custody in the USA since June 2003 (see above), the government sought to have the US Court of Appeals for the Fourth Circuit dismiss al-Marri’s habeas corpus petition under the Military Commissions Act. As already noted, under the MCA no court can hear any habeas corpus petitions from any foreign national detained by the USA as an "enemy combatant" and judicial review is limited under the Detainee Treatment Act to review by the DC Court of Appeals of final CSRT decisions. The government claimed that it was planning to provide Ali al-Marri with a CSRT in the future, although it did not say when. A three-judge panel of the Fourth Circuit rejected the government’s position:

"[T]he Government’s treatment of al-Marri suggests that, despite its litigation posture, it does not actually believe that the CSRT process in the DTA and MCA applies to al-Marri. In the four years since the President ordered al-Marri detained as an enemy combatant, the Government has completed CSRTs for each of the more than five hundred detainees held at Guantanamo Bay. Yet it was not until November 13, 2006, the very day that the Government filed its motion to dismiss the case at hand, that the Government even suggested that al-Marri might be given a CSRT. At that time the Government proffered a memorandum from Deputy Secretary of Defense Gordon England directing that al-Marri be provided a CSRT ‘upon dismissal’ of this case. This memorandum is too little too late."(158)