Detainees DO Have Due Process Rights

The latest ruling in the litigation over detainee rights was issued yesterday by Judge Joyce Hens Green of the DC Federal District Court in In re Guantanamo Detainee Cases. The decision is long (75 pages) and freighted with a fair amount of legal arcanae, but it is well worth wading through -- and contrasting with Judge Leon's January 25 ruling on the same issues

The most striking part of the ruling is that, without even acknowledging its existence, Judge Green rejects Judge Leon's previous ruling that the due process requirements of the US Constitution do not extend to non-citizen detainees at Guantanamo.

In sum, there can be no question that the Fifth Amendment right asserted by the Guantanamo detainees in this litigation - the right not to be deprived of liberty without due process of law - is one of the most fundamental rights recognized by the U.S. Constitution. In light of the Supreme Court's decision in Rasul, it is clear that Guantanamo Bay must be considered the equivalent of a U.S. territory in which fundamental constitutional rights apply. Accordingly, and under the precedent set forth in Verdugo-Urquidez, Ralpho, and the earlier Insular Cases, the respondents' contention that the Guantanamo detainees have no constitutional rights is rejected, and the Court recognizes the detainees' rights under the Due Process Clause of the Fifth Amendment.

Judge Green then goes on to hold that the procedures the Department of Defense had established for reviewing "enemy combatant" determinations failed to satisfy Due Process requirements in several respects.

First, Judge Green held that, in relying on "classified information" that was not disclosed to the detainees, the government denied all detainees the "notice of the factual basis for the government's claims" that the Supreme Court had held in Hamdi was an essential prerequisite of due process. The court did not go so far as to require that the detainees themselves be given access to the classified information. Judge held that it would be sufficient if the classified information was shared with the detainees' counsel. But this would require that counsel with appropriate security clearances be appointed for each detainee, something that also was not done. "In sum," Judge Green concluded:

the [review panels'] extensive reliance on classified information in its resolution of "enemy combatant" status, the detainees' inability to review that information, and the prohibition of assistance of counsel jointly deprive the detainees of sufficient notice of the factual bases for their detention and deny them a fair opportunity to challenge their incarceration.

The court went on to identify two other defects that "may or may not exist in every case:" (a) reliance on statements possibly obtained through torture or other coercion, (b) a vague and overly broad definition of "enemy combatant" that could be construed to reach individuals based solely on their association with anti-American groups.

In a somewhat unrelated ruling that does not implicate the Constitution as such, Judge Green ruled that the President does not have the power to unilaterally declare that all Taliban fighters captured in Afghanistan are not prisoners of war within the meaning of the Geneva Conventions, and that such determinations must be made, on a case-by-case basis, by a tribunal constituted under Article 5 of those Conventions. Thus, Taliban fighters at least, are entitled to an a priori independent determination of whether the qualify as prisoners of war or are simply "enemy combatants".

Finally, Judge Green more or less summarily dismissed claims based on other Constitutional provisions, treaties and laws, basically holding that the detainees' only cognizable claim (apart from the Geneva Convention argument potentially available to active Taliban fighters) was to a right to Due Process in challenging the factual basis for their detention.

Due to the unusual procedural posture of these cases, the actual effect of Judge Green's decision remains to be seen. At the time of the referral to Judge Green, there were 13 detainee cases pending in the DC District Court before 8 different judges. The government originally moved to consolidate all of these cases, but this motion was denied. The government then moved to "coordinate" rulings on what it saw as the dispositive issue: did the detainees have any cognizable rights under the Constitution, Treaties and Laws of the United States? This motion was granted -- sort of -- with Judge Green being assigned to provide the coordination. However, no Judge was required to refer his/her case to Judge Green for these purposes -- and Judge Leon declined to do so. Thus, only 11 of the cases were actually before her. Moreover, even in the 11 cases that were referred, the decision by Judge Green is not actually binding. Because the cases were not formally consolidated, the referring judges retain ultimate jurisdiction and are free to come to different conclusions on the issues decided by Judge Green. In short, especially given the different conclusions already reached by Judge Leon on these same issues, the potential for divisions among the various judges with jurisdiction over these cases is substantial. From a jurisprudential standpoint, this may not be so bad, since eventually all of these cases will end up in the DC Circuit Court of Appeals, and the final say on these issues will be had by the Supreme Court in any event. However, from the point of view of the parties -- and particularly the detainees -- the seemingly endless delays in coming to final resolution of these issues has to be enormously frustrating.