First of all the Government has submitted a 74-page Merits Brief to the US Supreme Court in the Boumediene and Al Odah litigation, which concerns whether or not aliens detained in GuantÃ¡namo Bay have constitutional rights. According to the Brief there is a â€œlong standingâ€ constitutional rule that such detainees have no constitutional rights. It is unclear whether by this the Brief means that there is a rule that â€˜enemy combatantsâ€™ have no such rights, or that â€˜aliensâ€™ have no such rights, or that people held in GuantÃ¡namo Bay have no such rights (or, indeed, all three). On either interpretation, however, the Brief can be rebutted. Firstly the mere status of â€˜enemy combatantâ€™ does not necessarily strip one of constitutional rights (Hamdi); secondly aliens who have a nexus to the US do have constitutional rights although they might not enjoy the full panoply thereof (INS v St Cyr); and thirdly GuantÃ¡namo Bay could be defined as an â€˜unincorporated territoryâ€™ of the US resulting in constitutional rights for those detained there (The â€˜Insular Casesâ€™ â€“ wiki with useful links). There are more expansive internationalist arguments to be made on the final point, but the Insular Cases offer a simple argument based on US precedent to immediately refute the â€˜no rightsâ€™ claim.
The Brief goes on to argue that even if such detainees did have constitutional rights (and the right they are primarily seeking to exercise is the right to habeas corpus) those rights are not being breached. US constitutional jurisprudence clearly establishes that the constitutional right to habeas corpus can be satisfied by an â€œadequate alternativeâ€ and, according to the Brief, the Combatant Status Review Tribunals offer such an alternative.
The CSRTs were established by Congress in the Detainee Treatment Act but are marred by well-publicised criticisms including lack of equality of arms, admissibility of dubiously-acquired evidence, lack of adequate access to counsel etc that have been notably documented by Prof. Mark Denbeaux and a team of his students from Seton Hall Law School (reports collected here). Ultimately the US Supreme Court â€“ if it finds constitutional rights (as seems likely) â€“ will be required to consider the adequacy of the CSRTs.
The Brief, of course, contains argumentation on further points and can be accessed here, but the case promises to put the issue of constitutional habeas corpus front and centre (finally) in the ongoing GuantÃ¡namo litigation. A Reply brief is expected within a few weeks.
The second development of note is a decision in the District of Columbia District Court of Judge Gladys Kessler to block the transfer of a GuantÃ¡namo Bay detainee to Tunisia because of the fears that he would be subjected to torture there. The Court held that she would stay the transfer until the Supreme Court had clarified the rights of the GuantÃ¡namo Bay detainees.