Document 1: News Article about Boumediene v. Bush
SOURCE: “Justices Hear Arguments in Guantánamo Cases,” by David Stout, New York Times, Dec. 5, 2012
WASHINGTON, Dec. 5 — A lawyer for six detainees held at the Guantánamo Bay naval
base in Cuba and the chief lawyer for the Bush administration waged a spirited argument before the
Supreme Court today on whether the detainees have adequate means to challenge their captivity.
The prisoners “have been held in isolation for six years” and, in some cases, “plucked
from their wives and children,” Seth P. Waxman, a lawyer for the prisoners, told the justices. He
argued that their treatment is contrary
to basic precepts of American justice.
But Paul D. Clement, the lawyer
for the Bush administration, said that
detainees at the base (just over 300 by
a recent count) have all the rights they
need, and all they are entitled to. The
treatment of the detainees reflects “the
best effort of the political branches,
both political branches, to prosecute
the war on terror,” Mr. Clement said.
“Congress has spoken,” Mr. Clement said, referring to the Military Commissions Act of
2006, which authorizes military-run courts to try the detainees and blocks them from challenging
their detention before federal judges by blocking their habeas corpus rights to call on their jailer
to justify the detention. These courts, known as military tribunals, operate outside of the ordinary
American legal system. They are overseen by military officials acting as both judge and jury.
Instead of lawyers, defendants are represented by an American official military.
1. What are military tribunals? How are they different than ordinary legal system?
After initially turning down the case, the justices agreed in June to take up the issue
following criticism of the military tribunals that were set up to handle the prisoners’ cases. The case
heard today is called Boumediene v. Bush. The petitioner, Lakhdar Boumediene, is one of six
Algerian detainees represented by Mr. Waxman. Unlike most of the Guantánamo detainees, who
were captured in Afghanistan or Pakistan during the American-led military campaigns there
following the terrorist attacks of Sept. 11, 2001, Boumediene and the other Algerian detainees was
a legal resident of Bosnia and was captured there in October 2001 on suspicion of plotting to attack
the United States embassy in Sarajevo.
2. When and where was Boumediene detained? What was he suspected of?
The Supreme Court is considering the question of whether the Military Commissions Act
violates the clause in the U.S. Constitution that enables the government to suspend the writ of
habeas corpus. The Constitution specifies that Congress shall not suspend “the privilege” of habeas
corpus “unless when in cases of rebellion or invasion the public safety may require it.”
3. What is the constitutional question in this case?
Based on the Military Commissions Act, Clement and the government is arguing that
Boumediene’s and the other detainees’ habeas corpus petitions should be dismissed. Both the
district court and the court of appeals agreed, with the court of appeals ruling that the Military
Commissions Act prevents federal courts from hearing the prisoners’ habeas petitions.
4. What lower courts heard the case, and how did they each decide?
Today’s arguments were the latest in a series of cases in which the proper balance of
national security and personal liberties have been debated. The situation of the Guantánamo
detainees is further complicated by several factors: they were not fighting on behalf of a nation
that had formally declared war on the United States, and they were not uniformed soldiers, so
they are not exactly prisoners of war.
And they are being held in a highly unusual place — an American base on an island
nation that is estranged from the United States — raising questions of what laws, and whose
laws, should apply to their treatment.
But that last question has already been answered, at least as Mr. Waxman (the lawyer
for the petitioner, Boumediene) sees it. Of course, United States law, and by extension the writ
of habeas corpus to challenge one’s detention, applies in Guantánamo, he argued. “If our law
does not apply,” he said, “this is a law-free zone.”
5. What question is raised because this case is being heard in Guantanamo Bay, Cuba?
Mr. Waxman, who was chief lawyer for the Clinton administration, and Mr. Clement took
starkly differing views on how the detainees’ rights measure up, and in particular whether the
procedures now in place are an adequate substitute for the writ of habeas corpus, a centuriesold means by which a person can challenge his imprisonment.
The remedies available to the detainees reflect a “remarkable, remarkable liberalization”
of the protections historically enjoyed by foreigners who were held by the United States outside
its borders, Mr. Clement (the lawyer for the Bush Administration) said.
“Absolutely incorrect,” Mr. Waxman countered later.
In response to questions from the bench, Mr. Clement said each detainee is afforded “a
personal representative” to assist him. How is the representative chosen? Justice John Paul
Stevens asked. By the military, Mr. Clement responded. And is this representative required to
relay to his superiors any useful intelligence gleaned from the detainee? Justice David H. Souter
asked. When Mr. Clement answered in the affirmative, Justice Souter observed that the
representative “is not in a position of counsel, as we understand the term.”
The cases argued today attracted several hundred spectators, who lined up outside the
Supreme Court building in hopes of getting inside. Several dozen camped overnight, braving the
cold and the first snowfall of the season across the Washington area, The Associated Press
reported. “Restore habeas corpus!” some chanted.
6. How does the government view whether the procedures put in place by the Military
Commissions Act are an adequate substitute for the writ of habeas corpus? How
does the lawyer for the petitioner view these procedures? Explain with evidence.
Document 2: The Military Commissions Act
The U.S. Government used the Military Commissions Act to justify its decision to
imprison Lakhdar Boumediene in Guantanamo Bay and deny him access to a lawyer or to
present evidence in his defense in court. Signed by President Bush in 2006, the Military
Commissions Act gave the President new authority in dealing with detainees suspected in the
war on terrorism. By suspending the writ of habeas corpus for what the law called “enemy
combatants,” the Act limited these defendants' traditional courtroom rights by restricting their
ability to examine the evidence against them and challenge the reason for their incarceration.
1. How did the Military Commissions Act affect detainees’ habeas corpus rights?
How did this affect detainees?
At the time he signed the bill into law, President Bush said the Military Commissions Act
was justified by the extraordinary circumstances of the fight against terrorism. "It is a rare
occasion when a president can sign a bill he knows will save American lives," he said, before
signing the measure. "I have that privilege this morning." Bush said the new law will allow the
US to prosecute captured terrorist suspects for "war crimes," and bring to justice the al-Qaeda
operatives who plotted the Sept. 11, 2001, attacks and other terrorist attacks.
Some Democrats, however, criticized Bush for signing a measure that they said violated
the nation's civil liberties protections. "It is a sad day when the Congress lays down and allows
the President to undercut our freedoms, assault our Constitution and let the terrorists achieve
something they could never win on the battlefield," said Sen. Patrick J. Leahy (D-Vt.).
2. What do you think? Do you agree with President Bush, or with Senator Leahy? Why?
The bill expanded the definition of unlawful enemy combatants to include people who
have "purposefully and materially supported hostilities" and people who have been declared
enemy combatants under military tribunals, "or another competent tribunal established under
the authority of the President or the Secretary of Defense." Under this new language, people in
the United States who were not American citizens could be declared unlawful enemy
combatants and held indefinitely without trial.
3. Who decides whether someone is an enemy combatant?
4. Explain how being declared an enemy combatant would change how defendants
are treated / what rights they have available to them.
The bill prohibited detainees held by the United States from filing lawsuits challenging
their detention, known as habeas corpus appeals. This wiped out both pending and future
lawsuits, and it would apply to people picked up anywhere in the world, including the U.S.
The provision was significant. Habeas corpus is an ancient protection that stems from
English common law, and its use dates back to as early as the 12th century. In 1969, the
Supreme Court called it "the fundamental instrument for safeguarding individual freedom
against arbitrary and lawless state action." Sen. Arlen Specter (R-PA) introduced an
amendment to remove this part of the legislation. He argued that the ability to challenge one's
detention is one of the most fundamental rights enshrined in the Constitution. The proposed
amendment failed.
5. What do you think the Supreme Court meant when it said (in 1969) that habeas
corpus is "the fundamental instrument for safeguarding individual freedom
against arbitrary and lawless state action."
The bill gave the president the power to "interpret the meaning and application of the
Geneva Conventions" - the international agreements set after WWII that governs how countries
must treat prisoners of war. Critics feared this meant that the president could - without checks
and balances - authorize interrogation techniques that many people would consider torture.
The Military Commissions Act also changes how evidence can be used against
detainees. First, it allows evidence acquired through “enhanced interrogation methods” - or,
what some consider torture. Second, the law says that defendants can only "respond" to all
evidence. The first draft of this legislation said that defendants could "examine and respond" to
all of the evidence against them at a military tribunal. The full implications of this phrase aren't
entirely clear. Defense lawyers will likely argue that defendants can't respond to evidence they
haven't been able to examine. Third, with the law, hearsay evidence is also now generally
acceptable at military tribunals. A judge has to rule that the evidence is reliable and relevant to
the trial.
6. How does the MIlitary Commissions Act change how evidence can be used
against detainee during a military tribunal hearing?
Document 3: Lakhdar Boumediene’s First Hand Account
“My Guantánamo Nightmare,” By Lakhdar Boumediene (from the New York Times, January 7, 2012)
On Wednesday, America’s detention camp
at Guantánamo Bay will have been open for 10
years. For seven of them, I was held there without
explanation or charge. During that time my
daughters grew up without me. They were toddlers
when I was imprisoned, and were never allowed to
visit or speak to me by phone. Most of their letters
were returned as “undeliverable,” and the few that I
received were so thoroughly and thoughtlessly
censored that their messages of love and support
were lost.
Some American politicians say that people at Guantánamo are terrorists, but I have
never been a terrorist. Had I been brought before a court when I was seized, my children’s lives
would not have been torn apart, and my family would not have been thrown into poverty.
I left Algeria in 1990 to work abroad. In 1997 my family and I moved to Bosnia and
Herzegovina at the request of my employer, the Red Crescent Society of the United Arab
Emirates. I served in the Sarajevo office as director of humanitarian aid for children who had lost
relatives to violence during the Balkan conflicts. In 1998, I became a Bosnian citizen. We had a
good life, but all of that changed after 9/11.
When I arrived at work on the morning of Oct. 19, 2001, an intelligence officer was
waiting for me. He asked me to accompany him to answer questions. I did so, voluntarily — but
afterward I was told that I could not go home. The United States had demanded that local
authorities arrest me and five other men. News reports at
the time said the United States believed that I was
plotting to blow up its embassy in Sarajevo. I had never
— for a second — considered this.
The fact that the United States had made a
mistake was clear from the beginning. Bosnia’s highest
court investigated the American claim, found that there
was no evidence against me and ordered my release.
But instead, the moment I was released American agents
seized me and the five others. We were tied up like
animals and flown to Guantánamo, the American naval
base in Cuba. I arrived on Jan. 20, 2002.
I still had faith in American justice. I believed my captors would quickly realize their
mistake and let me go. But when I would not give the interrogators the answers they wanted —
how could I, when I had done nothing wrong? — they became more and more brutal. I was kept
awake for many days straight. I was forced to remain in painful positions for hours at a time.
These are things I do not want to write about; I want only to forget.
I went on a hunger strike for two years because no one would tell me why I was being
imprisoned. Twice each day my captors would shove a tube up my nose, down my throat and
into my stomach so they could pour food into me. It was excruciating, but I was innocent and so
I kept up my protest.
1. What happened to Lakhdar Boumediene?
2. Why do you think Lakhdar Boumediene was treated this way?
3. What would you have done if you were Lakhdar Boumediene?
4. How was Lakhdar Boumediene’s imprisonment affected by the Military Commissions Act?
Document 4: Ex-Gitmo Detainee Suspected of Terrorism
“Ex-Gitmo detainee latest to be suspected of terrorism,” by Oren Dorell, USA TODAY, 2/25/14
The 2014 arrest of a former Guantanamo prisoner on suspicion of terrorism is the latest
example of a failed release program that is setting free unapologetic terrorists, an analyst says.
British authorities on Tuesday arrested Moazzam Begg, a British citizen of Pakistani
descent, on suspicion of attending a terrorist training camp and facilitating terrorism in Syria in
the midst of its civil war. Three others were arrested with him. Begg, 45, whose Guantanamo
imprisonment was trumpeted by international human rights groups seeking to depict
Guantanamo Bay as a torture chamber, had been picked up in Afghanistan as an al-Qaeda
enemy combatant in 2002 and released at the request of British authorities in 2005.
"He was a very articulate spokesman for the view that detainees were widely tortured in
Guantanamo and a lot of innocents were being held there," said Thomas Joscelyn, an analyst at
the Foundation for Defense of Democracies. "The
evidence shows that at least in his case, it was the
opposite."
The organization Begg led, CAGE, which
seeks the release of detainees accused of terrorism at
Guantanamo and elsewhere, said on its website that he
was "unjustly arrested" for "humanitarian work" he was
doing in Syria.
Of
hundreds of terrorism suspects
released from
the U.S. military's detention facility at
Guantanamo
Bay, Cuba, 30% — or about 170 — have been confirmed by intelligence officials or media
reports as having turned to terrorist activities after their release, according to Joscelyn.
The US held Begg in Guantanamo on suspicion of being an al-Qaeda leader. The
accusation was supported by a confession Begg made in 2003 while he was being held in
Guantanamo. Begg's confession, which he signed and corrected in several spots, said he
sympathized with al-Qaeda's cause, attended terrorist training camps in Afghanistan, Pakistan
and England, "and assisted several prominent terrorists and supporters of terrorists and
discussed potential terrorist acts with them," according to a 2008 report by the Justice
Department's Office of Inspector General.
However, Begg said afterwards that the confession he gave to the FBI at Gitmo was
coerced through torture. Numerous detainees have made such claims but no evidence has
been found to back them up despite numerous investigations. Investigations by the U.S.
Department of Defense and Department of Justice found no evidence of his torture claims.
In his confession, Begg admitted that he's a jihadist. He admitted that he "recruited
young operatives for the global jihad; and provided financial support for terrorist training camps,"
according to the OIG report. In his confessions, he said his role was limited to helping spread
propaganda and to recruit new terrorists.
The recent arrest, however, puts in doubt Begg’s claim that his role was minor. The
arrest "suggests he was actually doing something more operational, not just propaganda,"
Joscelyn said. "What he admitted to in 2003 in Guantanamo [which he claims he was forced to
say because he was being tortured] is what he's being accused of now, which is facilitation."
1. Why was Moazzam Begg arrested in 2014?
2. Why was he held in Guantanamo Bay from 2002-2005?
3. When he was in Guantanamo, Moazzam Begg made a confession. What did he
admit to in this confession?
4. Begg was released from Guantanamo because his confession was seen as
unreliable. Why do you think his confession was seen as unreliable?
5. What does the second arrest of Moazzam Begg (in 2014) tell you about whether or
not he was guilty in 2002?
6. Do you think the 2014 arrest of Moazzam Begg supports Bush’s side in Boumediene
v. Bush, or Boumediene’s side? Support your opinion with evidence.
Document 5: Amicus Curiae Brief for Petitioner
The Military Commissions Act: A Frightening and Dangerous Assault
Adapted from the Center for Constitutional Rights, “The Facts About Habeas Corpus and the Military Commissions Act”
The Military Commissions Act of 2006 (MCA) is a massive legislative assault on fundamental
rights, including the right to habeas corpus – the right to challenge one’s detention in a court of
law. Signed into law on October 17, 2006, the MCA contains sweeping provisions that strip
detainees entirely of their right to challenge their detention in court while shielding the
Administration from accountability for their actions. The Military Commissions Act...
●
Creates so broad definition of “unlawful enemy combatant” that it could include anyone
whom the Administration considers an enemy. The MCA’s definition of “unlawful enemy
combatant” – a term which, prior to the MCA, had no meaning in U.S. or international
law – applies to both citizens and non-citizens, and has the potential for constantly
expanding. It leaves in the hands of the President or Defense Secretary a nearly
unrestricted authority to declare people “unlawful enemy combatants.”
●
Protects the U.S. government and U.S. officials from accountability for their actions
against detainees. The Military Commissions Act attempts to block any legal actions by
current or former detainees for damages for abuses suffered during their detention,
despite the fact that such actions are often a critical brake upon illegal activities by
government officials. The law grants U.S. officials immunity upon officials who engaged
in and authorized the abuse of detainees at Guantánamo, Abu Ghraib, Bagram, and
other US detention facilities. Immunity means they are safe from prosecution for war
crimes can not be sued relating to any aspect of detention, treatment or conditions of
confinement for non-citizens detained by the US as “enemy combatants.”
●
Narrows the definition of torture to allow U.S. officials to legally engage in practices that
amount to torture, allows the use of statements obtained through coercion in
prosecution, authorizes military trials that provide little protection for the accused and
permit secret evidence, and attempts to limit the use of international law in U.S. courts.
Why is the Military Commissions Act unconstitutional?
●
Using the Military Commissions Act to deny habeas corpus rights to Guantanamo
prisoners violates the Suspension Clause because habeas corpus can only be
suspended when there is a rebellion or invasion. No army has invaded the United
States. Also, suspension of habeas corpus can only be temporary, while the Military
Commissions Act would permanently deny it to Guantanamo detainees.
●
The United States has “complete jurisdiction and control” over Guantanamo Bay. Cuba
has none. While it is not technically a U.S. territory, Guantanamo Bay has the same
protections as any U.S. territory and essentially belongs to the United States. This
means that the Guantanamo detainees are entitled to the same habeas corpus rights as
those being held within a U.S. state or territory.
●
The military tribunals are an inadequate and ineffective substitute for habeas corpus. The
tribunals are run entirely by military officials, who lack the independence and neutrality that
federal judges have. These military officials could be influenced by their superior officers
and might be pressured to label prisoners as enemy combatants. Moreover, being
assigned a “personal representative” is not the same as having access to an attorney.
●
The Supreme Court should not defer to the President and Congress. The U.S.
Constitution is the highest law of the land, and the writ of habeas corpus is a legitimate
check on the power of the other branches of government to imprison people for arbitrary
reasons. The Suspension Clause does not exempt the President from following the
Constitution. It is called the Suspension Clause because it is meant to be temporary and
only applied in extreme circumstance - circumstances which do not apply today.
Other considerations
A decision against the detainees would likely upset other countries, which argue that depriving
Guantanamo prisoners of meaningful habeas rights violates various international agreements,
like the Geneva Convention. The most powerful democracy in the world should be promoting
civil liberties, not eliminating them.
1. Why does the author think the MCA’s definition of “enemy combatant” is dangerous?
2. Why does the author make the argument that “no army has invaded the United
States?” Do you agree with this argument? Why or why not?
3. Do you agree with the author that the “military tribunals are an inadequate and
ineffective substitute for habeas corpus?” Why or why not?
4. Do you agree with the author’s argument about the Suspension Clause? Why or why not?
5. In your opinion, what are the most persuasive arguments made by the author?
Document 6: Amicus Curiae Brief for Respondent
The Military Commissions Act: An Essential Tool to Save American Lives
Adapted from the Office of the Press Secretary for President George W. Bush, October 2006 Press Release
The Military Commissions Act of 2006 is one of the most important pieces of legislation in the
War on Terror. The Act sends a clear message: This nation is patient and decent and fair, and
we will never back down from the threats to our freedom. With the Act, the legislative and
executive branches have agreed on a system that meets our national security needs. The
military tribunals set up by this law will provide a fair trial, in which the accused are presumed
innocent, have access to an attorney, and can hear the evidence against them. The military
commissions are lawful, they are fair, and they are necessary. The Military Commissions Act...
●
Allows the Central Intelligence Agency (CIA) to continue its program for questioning key
terrorist leaders and operatives like Khalid Sheikh Mohammed, the man believed to be
the mastermind of the September 11th attacks on our country. This program has been
one of the most successful intelligence efforts in American history. It has helped prevent
further attacks on our country. Information from terrorists in CIA custody has played a
role in the capture or questioning of nearly every senior al Qaeda member or associate
detained by the United States and its allies since this program began. Were it not for the
information gathered from detainees (made possible by laws like the Military
Commissions Act), our intelligence community believes that al Qaeda would have
succeeded in launching another attack against the American homeland. By allowing our
intelligence professionals to continue this vital program, this law saves American lives.
●
Allows us to prosecute captured terrorists for war crimes through full and fair trials. With
this legislation, those believed to have orchestrated the murder of nearly 3,000 innocent
people on 9/11 will face justice. We will also seek to prosecute those believed to be
responsible for the attack on the USS Cole and an operative believed to have been
involved in the bombings of the American embassies in Kenya and Tanzania.
●
Provides legal protections that ensure our military and intelligence personnel will not have to
fear lawsuits filed by terrorists simply for doing their jobs. The law allows our men and women
who question captured terrorists to perform their duties to the fullest extent of the law.
●
Complies with both the spirit and the letter of our international obligations.
●
Demonstrates that the legislative and executive branches have agreed on a system that
meets our national security needs.
Why is the Military Commissions Act constitutional?
●
The Military Commissions Act does not violate the Suspension Clause because the
existing terrorist threat qualifies as an emergency in the United States similar to an
invasion. The Constitution is clear on this matter: The President and Congress can
suspend habeas corpus rights to fight the War on Terror.
●
Even if the detainees are not entitled to the right of habeas corpus, the military tribunal
process instituted by the Military Commissions Act is an adequate and effective
substitute. To begin with, the tribunal members are neutral because they must swear
that they are impartial and cannot have been involved in the detainees’ detention. Also,
the government provides detainees with a personal representative, who explains the
process and helps the prisoners gather and present evidence.
●
The Supreme Court should not reject the combined efforts of the two elected branches
of government: the President and Congress. These two branches struck a compromise
between denying the prisoners’ rights and protecting the American people from
terrorists.
Other considerations
A decision for the Guantanamo prisoners could seriously undermine military efforts to fight
terrorism. It could lead to the release of more detainees and would divert resources away from
the military offense abroad to legal defense at home.
1. Why does the author think the MCA is preventing another attack on the U.S.?
2. The author (the Bush Administration) argues that the Military Commissions Act is
necessary to bring terrorists to justice. Why do you think the Bush Administration
was worried that they could not prosecute terrorists without the law?
3. What evidence does the author (the Bush Administration) provide to support its
argument that the Military Commissions Act does not violate the Suspension Clause?
4. How does the author (the Bush Administration) argue that the military tribunals
are “an adequate and effective substitute” for the right of habeas corpus?
5. In your opinion, what are the most persuasive arguments made by the author?