The United States Federal Court in the District of Columbia has been given the task of developing the rules by which the government can lawfully continue to detain the current residents of Guantanamo. This is the result of the decision of the Supreme Court in Boumediene which confirmed that such detainees had the right to access the constitutionally guaranteed writ of habeas corpus.
On April 22, 2009, Judge Reggie B Walton in Gherebi and others v Obama set out the test to be applied in habeas corpus applications by Guantanamo detainees.
Since the election of the Obama administration, the government has abandoned its reliance on the President’s powers as commander in chief of the defence forces of the United States as a basis for lawful authority to detain. The legal claim for power to detain is now based solely on the Congressional resolution dated September 18, 2001 which authorised the President to “use all necessary and appropriate force against those nations, organisations, or persons he determines planned, authorised, committed, or aided” the attacks on the World Trade Centre and “to prevent any future acts of international terrorism against the United States by such nations, organisations or persons”.
The judgment of Judge Walton in Gherebi is, therefore, an exercise in construing the AUMF to determine the extent to which it authorises the detention of individuals and the limits of that authority, particularly, as they flow from a consideration of the laws of law.
Judge Walton adopted a qualified version of the test suggested by the government as the appropriate test for the lawfulness of detention. The test suggested by the government (and adopted by the Court) is that the President can detain “persons who were part of, or substantially supported, Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy forces”.
However, the formula was qualified by Judge Walton’s addition that “the Court interprets the government’s ‘substantial support’ standard to mean individuals who were members of the ‘armed forces’ of an enemy organisation at the time of their initial detention. It is not meant to encompass individuals outside the military command structure of an enemy organisation …”
In a later decision handed down on May 19, 2009, Judge John D Bates rejected the government’s concept of “substantial support” for al-Qaida and the Taliban as a justification for detention. Judge Bates expression his conclusion as to the proper basis for detention as follows:
… under the AUMF the President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who are or were part of Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of enemy armed forces. (Emphasis added.)
As each of the judges has indicated, the details of the test being applied is unlikely to make a great deal of difference to the decision in most cases. For example, support for one or other organisation may well be a factor in deciding whether the detainee was, in fact, a member of the organisation. Dealing with the facts of particular cases may also result in finetuning of the legal test.
Meanwhile, on May 5, 2009, Judge Gladys Kessler dealt with the facts concerning the detention of one detainee. In a moderately redacted set of reasons, ordered the release of detainee, Alla Ali Bin Ali Ahmed, a citizen of Yemen, who had been detained at Guantanamo since 2002 when he was a mere teenager.
Judge Kessler referred to the government’s position as spelled out in Gherebi but does not specifically rely on Judge Walton’s acceptance and qualification of that position. Judge Kessler expressed the evidentiary burden as being on the government to establish that detention is justified and that this must be achieved by “a preponderance of the evidence”.
Judge Kessler was not prepared to apply a rebuttable presumption that the facts stated in government documents were accurate. This was because the accuracy of many of the documents was disputed; they contained second and third hand hearsay; a number of the statements were alleged to have been obtained by torture; and none of the statements were actually recorded verbatim. The Federal Rules of Evidence provided, however, that all relevant evidence is admissible requiring that even second or third hand accounts be received into evidence in the first instance and be evaluated for credibility.
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