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By J.B. Wogan December 13, 2012
Back to Restore habeas corpus rights for "enemy combatants"

Many enemy combatants still lack habeas rights

When Barack Obama ran for president in 2008, he told voters he strongly supported efforts to restore habeas corpus rights to people the U.S. government had deemed enemy combatants.

Habeas corpus is the legal right, embedded in the U.S. Constitution, which allows any prisoner held by the American government to challenge his or her imprisonment. A president may suspend that right only "when in Cases of Rebellion or Invasion the public Safety may require it," according to the Constitution.

Suspension of habeas corpus has been rare in U.S. history, though it has happened -- most notably when President Abraham Lincoln suspended habeas corpus rights during the Civil War.

Protecting habeas rights was a priority for Obama early in his career as a U.S. senator. Project Vote Smart, a website that collects public statements by politicians, shows 21 instances where he mentioned it in press releases, stump speeches, media interviews and presidential debates.

"This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person," Obama said in speech on the Senate floor in 2006. "By giving suspects a chance -- even one chance -- to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit."

At the time of Obama's comments, roughly 400 terrorism suspects were locked up in the Guantánamo Bay Naval Base prison in southern Cuba, down from nearly 700 in 2003. President George W. Bush's administration had held those prisoners indefinitely without charging them or trying them beginning in 2002 -- in the aftermath of the Sept. 11, 2001 attacks on the United States. Prisoners did have access military tribunals, but the tribunals did not allow detainees to see, hear and contest all evidence being used against them.

Supreme Court rulings in 2004, 2006 and 2008 confirmed that prisoners at Guantánamo did have habeas rights and the military tribunals were not sufficient substitutes. The U.S. government transferred more than 500 prisoners before Obama took office (166 remained in November 2012). Under the Obama administration, however, the force of those rulings have weakened.

"President Obama is steadily returning Guantanamo to the secretive and hopeless internment camp that he vilified as a candidate," wrote Azmy Baher, legal director of the Center for Constitutional Rights, in an August op-ed in The Washington Post.

Human rights groups have criticized the Obama administration for its insistence on appealing decisions by the U.S. District Court for the District of Columbia that have favored Guantánamo prisoners' petitions. At the appeals level, the Obama administration has successfully persuaded the court to keep almost every Guantánamo petitioner in detainment.

Baher's op-ed noted that the court of appeals has "imposed legal standards that make it virtually impossible to win a habeas case." He also wrote that the Supreme Court has refused to review the appellate court's standards, signalling "the end of meaningful judicial oversight of Guantanamo."

In January, the American Civil Liberties Union also condemned the backsliding under Obama, saying Guantánamo was not of his "making, but it is now one of his choosing." The civil rights group also denounced efforts by Congress to pass a law that would make permanent the indefinite military detention of anyone without charge or trial, so long as they are deemed an enemy combatant. Finally, the group echoed Baher's assessment that the Supreme Court "has stood by as the D.C. Circuit has effectively gutted meaningful habeas review."

The limited rights afforded to prisoners in Guantánamo are still better than those at the Parwan detention facility in Afghanistan, according to Golnaz Fakhimi, an attorney litigating on behalf of U.S. detainees brought into Parwan from other countries. Human rights attorneys have argued that a Supreme Court ruling in 2008 about Guantánamo detainees should extend habeas rights to non-Afghan detainees -- deemed enemy combatants by the U.S. government -- in Parwan as well.

In October the Obama administration persuaded a federal judge that prisoners at Parwan -- placed there by the U.S. military -- do not have habeas rights, largely because Afghanistan is an active theater of war and the detention facility is not entirely under United States' control, unlike Guantánamo. This followed a unanimous decision in 2010 by the D.C. appeals court, applying the same rationale.

We requested a comment from the White House about concerns raised by Baher, Fakhimi and others, but did not hear back.  

Obama promised to restore habeas rights for people the U.S. government deemed enemy combatants. Four years later, prisoners in at least at two U.S. military detention facilities either have no meaningful way to challenge their confinement, or no legal right at all. We rate this a Promise Broken.

Our Sources

Interview with Golnaz Fakhimi, staff attorney for the International Justice Network, Dec. 7, 2012

Interview with Scott Roehm, The Constitution Project, counsel for the Rule of Law Program, Dec. 11, 2012

Center for Constitutional Rights, Guantanamo Habeas Scorecard, May 30, 2012

The New York Times and National Public Radio, A History of the Detainee Population(accessed on Dec. 12, 2012)

The Oyez Project at Chicago-Kent College of Law, Rasul v. Bush,

The Oyez Project at Chicago-Kent College of Law, Boumediene v. Bush

The Oyez Project at Chicago-Kent College of Law, Hamdan v. Rumsfeld

U.S. District Court for the District of Columbia, Al-Maqaleh v. Gates (accessed on Dec. 11, 2012)

WhiteHouse.gov, Executive order: Review and disposition of individuals detained at the Guantanamo Bay Naval Base and closure of detention facilities, Jan. 22, 2009

SCOTUS Blog, No habeas rights at Bagram, May 21, 2010

Lawfare Blog, Johnson v. Eisentrager, 339 U.S. 763 (1950) (accessed on Dec. 11, 2012)

The New York Times, The court retreats on habeas, June 13, 2012

The Washington Post, Obama turns back the clock on Guantanamo, Aug. 16, 2012

The New York Times, Justices, 5-4, Back Detainee Appeals for Guantánamo, June 13, 2008

Los Angeles Times, The detainee problem; Holding terrorism suspects indefinitely without a trial offends American notions of due process, Sept. 23, 2012

U.S. Constitution, Article 1, Section 9

American Civil Liberties Union, National Security: Detention (accessed Dec. 6, 2012)

American Civil Liberties Union, National Security: ACLU Statement on Ten Years of Guantánamo, Jan. 9, 2012

American Civil Liberties Union, Don't Be Fooled by New NDAA Detention Amendment, Nov. 29, 2012

Salon, The Obama GITMO myth, July 23, 2012

Salon, Supreme Court restores habeas corpus, strikes down key part of Military Commissions Act, June 12, 2008

Salon, Repulsive progressive hypocrisy, Feb. 8, 2012

Salon, Three myths about the detention bill, Dec. 16, 2011

Salon, Congress endorsing military detention, a new AUMF, Dec. 1, 2011

Salon, The We-Are-At-War! mentality, Dec. 3, 2011

U.S. Constitution, Article 3 Section 3 (accessed on Dec. 11, 2012)

Project Vote Smart, Habeas Corpus -- Amendment No. 5087, Sept. 27, 2006