What happens when an overly broad executive power clashes with the traditional notions of fairness and justice? One must yield, but which one?
Abu Bakker Qassim and A'del Abdu Al-Hakim are natives of China. Captured by Pakistani forces in late 2001/early 2002, they were turned over to the United States Military. For six months, both men were held in the prisons of Afghanistan. They were tranferred after half a year to Guantanamo Bay, where they remain until this very day.
The problem is that they are innocent. They have been declared as such by our government over nine months ago, when a Combatant Status Review Tribunal (CSRT) determined that "they should no longer be classified as enemy combatants."
On March 10, 2005, these two innocent men filed writs of habeas corpus, demanding their release. The government did not agree to release them; in fact, it did not tell anyone of the decision by the CSRT that the men were innocent. Instead, it filed for a delay. The government didn't even inform the attorneys of these men of the CSRT decision. It did not even inform the court. The court, ignorant of the fact that these men were no longer considered enemy combatants, denied their request for a preliminary injunction and granted the stay. Thus, Abu Bakker Qassim and A'del Abdu Al-Hakim were forced to remain imprisoned in Guantanamo until the stay was lifted.
It was only in July of last year, when they travelled to Gitmo, that the attorneys discovered that their clients were indeed declared innocent by the government that held them. They filed a petition for immediate release; yet the government opposed the motion.
Why? Why would the government refuse to immediate release these innocent men who were imprisoned now for over three and a half years?
The status of "enemy combatant" has been, until now, the only handhold for the government's claim of executive authority to hold detainees at Guantanamo. It is the only rationale approved by the Supreme Court, see Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 2639-40, 159 L.Ed.2d 578 (2004). Now that these petitioners are classified as "no longer enemy combatants" (NLECs), the government has had to articulate a new reason for continuing to hold them. That reason, asserted at the August 1 hearing, again in the government's post-hearing memorandum, and yet again in open court on December 12, 2005, is "the Executive's necessary power to wind up wartime detentions in an orderly fashion." Resp't Supplemental Mem. at 12.
So the government refused to release them until it found an 'orderly' fashion for their release. The implications of the government argument is shocking: the Executive Power during wartime is so broad that the government can indefinitely detain indivuals it has deemed to be completely innocent.
Judge Robertson, District Court Judge in D.C., wrote the following about the government's extraordinary claim:
The government claims that it has authority for petitioners' continued detention because the Executive has the "necessary power to wind up wartime detentions in an orderly fashion." Resp't Supplemental Mem. at 12. A major premise of that claim, of course, is that petitioners' detention was lawful in the first place. [...] What we know of them is only that they were captured as they fled towards Pakistan after the inception of coalition bombing. See Hood Decl. ¶ 2. The government's use of the Kafkaesque term "no longer enemy combatants" deliberately begs the question of whether these petitioners ever were enemy combatants.
The support the government offers for its assertion of "wind up" authority is unpersuasive and, in my view, actually cuts against the government's position. As the Supreme Court noted in Hamdi, the authority to detain in wartime is grounded in the need to prevent captured individuals from returning to the field of battle.[...] Nothing in this record establishes that the government has or could reasonably have a concern that these petitioners would return to the battlefield if released. [...]
The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.
So far, so good, right? Not quite. Because while the court ruled that these men should be released, it also ruled that it could not order that release:
Ordinarily, a district judge reviewing a habeas petition does not need to proceed very far beyond determining that the detention is unlawful before ordering petitioner's release. The ordinary case, however, does not involve (I) aliens (ii) held outside the geographic territory of the United States (though not outside its "complete jurisdiction and control," see Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004)) (iii) in a camp inside a secure military facility. The habeas statute requires a court after determining the facts to "dispose of the matter as law and justice require," 28 U.S.C. § 2243. The question in this case is whether the law gives me the power to do what I believe justice requires. The answer, I believe, is no.
Why can't the court just release these innocent men? First, the petitioners argued to apply a basic interpretation of the phrase habeas corpus--which means "produce the body." Bring the men to court, then release them. But the judges hands were tied under habeas corpus, because the legal status of these men was already determined. The command of the habeas statute requires the court to order the body of the petitioner produced "[u]nless the application for the writ and the return present only issues of law." 28 U.S.C. § 2243.The purpose of a habeas corpus hearing is, by law, "to resolve factual issues relating to the legality of petitioners' detention." But, as the court pointed out, "the government concedes that petitioners are NLECs."
There is no question of fact here: these men are innocent. The writ for habeas in turn, was based on a question of law as to whether the executive power could be extended to indefinitely detain these men. So pure habeas relief is out.
The men suggested they just be released into the general population at Gitmo, but, of course, there are all sorts of legal baracades to that. They are foreign nationals, and cannot merely be set free on a military base without recourse. A court has no power to order the military to accept a civilian--much less a foreign national--on a military base. Military bases are under the control of the Commander in Chief.
Last month, at a loss of how to set these men free, the court contemplated issuing a generic order: "a simple order requiring the petitioners' release, without specifying how, or to where." But that would violate the separation of powers. How? Well, the government has not yet found a country to accept these innocent men. So the order would essentially be that the men be allowed in the United States. But the power to exlude or permit aliens entry is not vested in the judicial branch, but the Executive Branch.
In short, these men, declared innocent 9 months ago, having suffered 4 years of imprisonment around the globe, now must remain in their cells because of the legal limbo created by the War on Terror.
Is there any way out of this legal and moral chaos? The Washinton Post reported yesterday that the attorneys are seeking immediate intervention from the Supreme Court:
Lawyers for a group of Chinese nationals held in the U.S. military prison at Guantanamo Bay, Cuba, with no hope of release are taking the rare step of asking the Supreme Court to intervene immediately, saying only the high court can resolve the constitutional crisis their case presents.
Attorneys for the detained Uighurs, Muslim natives of western China who oppose their country's Communist rule, are scheduled to petition the court as early as today. They seek a break in the impasse created when U.S. District Judge James Robertson ruled last month that the Bush administration's "Kafka-esque" detention of the Uighurs was illegal but he simultaneously determined that the court lacked the power to overrule the president and free them.
"That ruling doesn't simply hit innocent men now in their fifth year of imprisonment," said Sabin Willett, one of the Uighurs' attorneys. "It goes to whether we have a judicial branch at all. This is that rare question so vital that the Supreme Court should immediately intervene to answer."
It is unclear whether the Supreme Court will accept their petition, or whether the men will have to go through the pro forma appeal (which could take over a year) to reach the steps of the Supreme Court. What is clear is that these men--declared innocent by the government that cannot now release them--are tragically caught in the crosshairs of a true injustice which cannot be remedied, and the ever-broadening power of the Executive Branch which refuses to release them.