Introduction ~ Numbers of Detainees ~ GTMO tribunals ~ Hamdan Federal Court Case ~ GTMO Courthouse

The Department of Defense (DOD) on Dec. 14, 2006, announced the transfer to Saudi Arabia of 16 detainees previously held at the Global War on Terror (GWOT) detention and interrogation facilities operated by the Joint Task Force Guantanamo Bay at the U.S. Naval Station, Guantanamo Bay, Cuba (GTMO). 

Meanwhile, on Dec. 13, 2006, the U.S. District Court for the District of Columbia issued a decision throwing out a habeas corpus petition filed by Osama bin-Laden’s driver, Salem Ahemd Hamdan, that had spawned litigation resulting in the U.S. Supreme Court striking down GTMO military commissions in its June 29, 2006, Hamdan v. Rumsfeld decision.  Judge James Robertson, a Clinton appointee and U.S. Navy veteran, rested his decision on the Military Commissions Act of 2006 (MCA), passed Sept. 29, 2006, signed by the president on Oct. 17, 2006, purporting to reestablish the military commissions and, among other things, strip federal courts of GTMO habeas corpus jurisdiction.  Robertson noted that a bipartisan bill, S. 4081, introduced in the U.S. Senate Dec. 5, 2006, would explicitly restore such jurisdiction, but in any event at least some MCA provisions are destined to come before the Supreme Court, which has yet to directly address constitutional habeas corpus issues involving GTMO.

Meanwhile controversial construction budgeting for a new GTMO military commission courthouse will await the new Congress, following apparent attempts by the DOD to shoehorn the roughly $100 million matter into emergency spending, or rather the diversion of other construction funds based upon the existence of a declared national emergency involving the use of the military.  Concerns were raised that this tactic might have been motivated, in part, by a preference to avoid the more thorough oversight that might be attendant to a more conventional budget process.

Numbers of detainees and countries

With the Dec. 14, 2006, transfer, DOD indicates that approximately 415 detainees remain at GTMO, of which 100 have been determined eligible for transfer or release through review processes (see below).  Transferred detainees are transferred into the custody of another government, while those that are released are set free, albeit still into another country.  The departure of the 100 with their release or transfer pending apparently await negotiations between the United States and the countries they would be sent to, presumably relating to whether those countries are willing to accept them and how they might be treated there.

Ninety-six detainees have now departed GTMO in 2006, among approximately 360 departing since 2002.  Destinations have included Albania, Afghanistan, Australia, Bahrain, Belgium, Denmark, Egypt, France, Germany, Iran, Iraq, Jordan, Kuwait, Maldives, Morocco, Pakistan, Russia, Saudi Arabia, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom, and Yemen.

On May 15, 2006, DOD released a table in PDF format, listing 759 detainees that were being held, or formerly had been held at GTMO since 2002, of which approximately 200 were released or transferred without going through a Combatant Status Review Tribunal process (see below). 

Prior to the release of the detainee list, the State Department indicated at least 44 countries have had their nationals held at GTMO.

GTMO detainees and GTMO tribunals

DOD indicates that the Dec. 14 transfer to Saudi Arabia was based on GTMO Administrative Review Board (ARB) proceedings.  This fact implies DOD’s belief that the detainees actually had been enemy combatants, but stopped posing a threat or offering intelligence value.

At GTMO, DOD has set up two types of tribunals to address a detainee’s status as an “enemy combatant,” something akin to an enemy prisoner of war (EPW, or POW).  EPW’s traditionally could be held in a humane form of detention, not as a criminal facing a sentence, but to remove them from participating further in hostilities.  The GTMO framework arguably has attempted to treat intelligence interrogation almost as a separate twin prong justifying detention.

GTMO Combatant Status Review Tribunals (CSRT) are held out as revisiting the accuracy of initial designations of an individual as an enemy combatant, while GTMO Administrative Review Boards (ARB) were to address, on an annual basis, whether an individual deemed an enemy combatant still posed a threat or offered intelligence value.  ARB’s were said to address the problem that, while traditionally EPW’s could be held until the end of hostilities, it is not clear whether in the Global War on Terror (GWOT) the end of hostilities can truly be known, and whether it will come within anyone’s lifetime.  A third type of tribunal, Military Commissions, the subject of litigation before the Supreme Court and the Military Commissions Act of 2006 (MCA), purports to try detainees as criminals to impose a criminal sentence. (The prosecutions are based on the concept that while EPW’s traditionally enjoy “combat immunity” for acts of violence on the battlefield compliant with the laws of war, EPW’s that violated the laws of war could be prosecuted as war criminals and receive punitive sentences, and the argument that GWOT enemy combatants are sometimes termed “unlawful combatants” to begin with can also be shown to have violated the laws of war).

For all three types of tribunals, controversy has arisen over the fairness of the proceedings, including the use of secret evidence not disclosed to the accused, who, without knowledge of the evidence being used against him, therefore might not be able to fully prepare his defense against it.

GTMO habeas corpus petition dismissed under Military Commissions Act

Another legal route taken by a number of GTMO detainees has been to file habeas corpus petitions in civilian federal court, a procedure that challenges the government to justify its detention of an individual when, for example, no charges have been filed. 

Under Article I §9 of the U.S. Constitution, Congress may suspend the right to a writ of habeas corpus only in times of war or rebellion, but otherwise the right is enshrined in federal statute, as well the Constitution.  It has not been held that Congress has suspended the right in the GWOT, although questions of jurisdiction, i.e., which court or tribunal can address the subject, have been another matter.  When GTMO habeas corpus litigation came before it, the U.S. Supreme Court in Rasul v. Bush held on June 28, 2004, GTMO detainees held such a right and could exercise it in civilian federal court.  The Supreme Court rested its 5-4 decision on statutory grounds, given the practice of avoiding constitutional confrontations, perhaps leaving open what it would do if forced, by changes in statute, to confront constitutional issues. 

When Congress attempted to address the matter of habeas jurisdiction by statute in the Detainee Treatment Act, the Supreme Court in Hamdan v. Rumsfeld on June 29, 2006, declined to find the legislative language applicable.  Congress then would enact the MCA, passed Sept. 29, 2006, and signed into law by the president on Oct. 17, 2006.

Hamdan himself, however, on Dec. 13, 2006, would have his habeas petition dismissed by the same federal judge who initially had granted it, on the grounds that the MCA had superseded the decision by statute.  The decision by the U.S. District Court for the District of Columbia, however, notes that “[t]he MCA may not have been Congress’s last word on the statutory habeas rights of detainees such as Hamdan,” since on Dec. 5, 2006, the two opposing leaders of the Senate Judiciary Committee, Senator Arlen Specter, R. Penn., and Senator Patrick Leahy, D. Vt., together introduced S. 4081 to grant statutory habeas rights to those whose rights were repealed by the MCA.

The MCA undoubtedly will come before the Supreme Court again, in the very least to address the MCA’s primary focus, the establishment, framework and procedures of military commissions.  Habeas issues relating to the MCA also could come before the Supreme Court, if not also other issues touched upon by the MCA, such as detainee treatment (i.e., how detainees are treated generally in captivity or during interrogation) or culpability of U.S. personnel under the War Crimes Act.

GTMO Courthouse controversy

On Dec. 10, 2006, it was revealed that the DOD was giving up efforts to treat the construction of a new military commissions courthouse at GTMO as an “emergency” measure, diverting roughly $100 million from other authorizations to construct it rather than go through the regular budget process and possibly face hearings over the matter.

The Miami Herald reported that on Nov. 17, 2006, Depute Secretary of Defense Gordan England sent a letter to Congress seeking to invoke 10 U.S.C. §2808 and, as an emergency measure, divert funds already authorized for other construction. 

10 U.S.C. §2808 reads:

Sec. 2808. Construction authority in the event of a declaration of war or national emergency

(a) In the event of a declaration of war or the declaration by

the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, … may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been  appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

(b) When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the

cost of any real estate action pertaining to those  construction projects.

(c) The authority described in subsection (a) shall terminate

with respect to any war or national emergency at the end of the war or national emergency.

Questions have been raised over whether the courthouse construction was truly urgent enough to take it out of the normal budget process, considering that detainees already have been held at GTMO for four years, that there already is a courthouse - a converted dental clinic, used for the ill-fated military commission proceedings halted by the U.S. Supreme Court - not to mention the fact that it is not necessarily clear whether the Supreme Court will permit the MCA-framed version of the military commissions to proceed.

Of added concern is whether the DOD was adopting such a funding route in the hope of avoiding the hearings and public debate that could accompany a more conventional budget process.

On a notice dated Nov.20, 2006, but no longer apparently actively linked from the relevant bid solicitation web page the U.S. Navy solicited bids from contractors by Dec. 20, 2006, for a new GTMO legal compound including a courthouse with two large courtrooms, housing for 800-1200 personnel, dining facility for up to 800 personnel, a transportation facility to service approximately 100 Government owned vehicles, and siting/utilities for up to two new courthouses to include a communications/viewing center, an interview facility, communications facilities and equipment, CCTV feed from all courtrooms and a secure perimeter.  The estimated cost range was listed at between $75,000,000 and $125,000,000, with the work to be completed by July 2007.

It appears now that review of the spending will fall to the new Congress

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