Is there any place on the planet where prisoners in the War on Terror can get a hearing on the merits of their detention?
The U.S. government has asserted in several federal courtrooms that the answer is no. The Coalition of Clergy, Lawyers and Professors, an ad hoc group representing Afghans and other Muslims imprisoned by the U.S., hopes the answer lies as close as Pasadena.
There, the 9th Circuit Court of Appeals will hear arguments Monday in a lawsuit demanding that the government give some accounting of the 500-plus prisoners now being held at the U.S. naval base at Guantanamo Bay, Cuba.
The coalition, led by civil rights attorney Stephen Yagman and USC law professor Erwin Chemerinsky, sued in January to force the government to name the prisoners, specify their charges and grant them standing in federal court. As described in its appeal, the coalition “presents a question of singular and profound importance: May the United States government violate its own laws and in no court be held accountable?”
U.S. District Court Judge A. Howard Matz rejected the suit in February, ruling that his court had no jurisdiction over the question and, more important, that no federal court could impose an accounting on President Bush and his administration for its wartime conduct.
Since then, the population at Guantanamo has been relocated from temporary quarters, dubbed Camp X-Ray by reporters, to a more permanent prison called Camp Delta, and the number of prisoners has climbed steadily. While the passage of more than six months has pushed the prisoners in Cuba off the front pages of the American press, it has also helped define what is a23 going on there: the indefinite detention, without charges and without appeals, of anyone deemed to be an enemy in the War on Terror.
Also during the interim, two groups of prisoners — four from Britain and Australia, and 12 Kuwaitis — have retained attorneys and sued on the same grounds raised in Los Angeles. Those two suits were heard in federal court in Washington, D.C., last week, and a decision is pending.
All three cases make the same argument: The U.S. is bound, by the Constitution and by international treaty, to identify its prisoners and to state the charges against them. “The U.S. position is very clear: They can hold them as long as they want, in any condition they want, and no court in the world has anything to say about it,” said Joseph Margulies, a Minneapolis lawyer representing the British prisoners at Guantanamo.
“It’s classically contrary to the provisions of international law,” Margulies said. “In every international convention since World War II, there‘s a prohibition on arbitrary, indefinite detention without legal process.”
Margulies said some of his clients may be innocent of waging warfare, but they can’t defend themselves, in part because they haven‘t been charged: “All we know is that somehow these guys fell into the hands of the U.S. military.”
The Los Angeles case is the first of the three to reach a court of appeals, but it also has the highest hurdles to overcome, because it has no named clients and no contact with the prisoners at Guantanamo. The U.S. Attorney’s Office dismissed the coalition in court papers as “uninvited meddlers,” and in his February ruling, Judge Matz agreed.
In the appeal, coalition attorney Stephen Yagman argues that actual contact with the prisoners in Guantanamo is impossible because “travel by Americans to Cuba is prohibited,” and because the base itself is closed to the public. Yagman cites a New York Times account from March in which a prisoner shouted in English to a reporter touring the perimeter of the base, “We need the world to know about us. We are innocent here in this place. We‘ve got no legal rights. Nothing.”
Since the prisoners have no access to the courts, Yagman contends, the coalition may stand in for them. And whereas Judge Matz agreed with the U.S. attorney that no court has jurisdiction over the handling of prisoners on foreign soil, Yagman contends that any federal court should qualify. “The district court’s holding that federal courts may not review the government‘s actions here, no matter how lawless, is at odds with the most fundamental precepts of the American system: Our government is not above the law.”
Here Yagman leaves the legal tomes and invokes history and literature to make his point. He quotes Czech author Milan Kundera, asserting that “the struggle of man against [unjust] power is the struggle of memory against forgetting.” He equates the jail in Guantanamo to the Nazi concentration camps and the detention of Japanese-Americans during World War II. And he evokes Thomas Paine, warning that “When those who lay claim to liberty and justice deny those virtues to others, they risk loss of their own freedoms and of justice.”
That question, at least, will be put to the test in yet another suit arising from Guantanamo. That case involves the status of Yaser Esam Hamdi, who was captured in Afghanistan and held in Cuba until it was discovered that he was born in Louisiana. Hamdi is now being held incommunicado at a naval station in Norfolk, Virginia.