The Supreme Court Faces the Kangaroo Courts

This week, the Supreme Court will consider--again--whether prisoners held at Guantanamo have the right to go to court to challenge their detention. At oral argument on Wednesday in the consolidated cases of Boumediene v. Bush and Al Odah v. U.S., the Court will hear opposing views as to the constitutionality of the Military Commissions Act of 2006, which purports to bar the courts from hearing habeas corpus petitions brought by detainees on Guantanamo.

Constitutional Questions

In Rasul v. Bush, decided in 2004, the Court held that the habeas jurisdiction of the federal courts extends to Guantanamo. However, Congress attempted to overrule the impact of that decision in passing the Military Commissions Act last year.

The first and most basic question that the Court must now address is whether prisoners at Guantanamo enjoy a constitutional right of habeas corpus (in other words, whether the Rasul decision was grounded in the Constitution, or whether it had mere statutory grounds). If the Court finds that such a constitutional right exists, then it may assess whether Congress meant to suspend the right, and whether Congress had the power to do so.

Another issue that the Court may reach is whether Congress, in allowing for federal court review of the status proceedings that detainees receive at Guantanamo, has provided them with an "adequate substitute" for the right of habeas. That's where kangaroo courts come into the picture.

After the Court's 2004 decision in Rasul, the administration began holding Combatant Status Review Tribunal proceedings, or CSRTs, to determine whether individual detainees were properly detained. The proceedings, however, are deeply flawed.

"Still" a Combatant, or "No Longer" One?

Unlike habeas proceedings, where the government must show that a detention is lawful, CSRTs, in practice, put the burden of proof on the detainee. Although the CSRT rules formally state that the government bears the burden of proof, what the detainee is told--that that he can "contest [his] status as an enemy combatant"--suggests the opposite.

The rules stipulate, moreover, that each detainee was previously determined "to be an enemy combatant through multiple levels of review by military officers and officials of the Department of Defense." Indeed, the CSRTs are instructed to ask whether the detainee is "still" an enemy combatant, not whether he ever merited the label in the first place. And in a bizarre formulation, though one that is perfectly characteristic of the CSRTs' approach, any detainee who manages to convince his panel that he is being wrongly held is deemed "no longer" an enemy combatant, rather than simply "not" an enemy combatant.

What has the greatest impact in shifting the effective burden of proof is, at any rate, the tribunals' overwhelming reliance on secret evidence. This classified evidence is not only withheld from the detainee but, under the CSRT rules, it is also considered presumptively valid. Detainees are left helpless: They cannot meaningfully challenge evidence that they are not allowed to see. And unable to challenge the evidence, they have no ability to rebut its presumptive validity.

The CSRTs have a host of other basic procedural defects. Detainees have no access to counsel, almost no access to exculpatory witnesses or evidence, and little practical ability to carry out research in support of their claims. Besides allowing secret evidence and hearsay, the U.S. government has made it clear the evidence can include testimony "obtained through a non-traditional means, even torture." Although the decisions reached by CSRTs may be reviewed in federal court, the court is limited to the CSRTs' own factual record--severely constraining the possibility of a meaningful assessment of the detainee's eligibility for release.

What Is Their Proof?

Reading a description of the CSRT process is one thing, but to get a fuller understanding of the proceedings it helps to read the transcripts of some hearings. Transcripts of the hearings of hundreds of tribunals were released last year; they suggest just how unfair the proceedings actually were.

Numerous detainees were utterly bewildered at being asked to rebut evidence that was kept secret from them. "From where did they come up with this?" one man asked, when faced with the allegation that he had fled Afghanistan with a group of armed men. "What proof do they have for this? Did they see me or see somebody that was with me? What is their proof?"

Another asked the tribunal, quite logically, "If there is a secret witness that testified against me and secret information how can I defend myself if I don't know what this information is?"

Detainees expressed particular frustration at not being informed of the source of the testimony against them. One man, told that an "Al Qaeda leader" had claimed to have known him at a terrorist camp in Georgia, demanded to know who the person was. "Is he Arab, Caucasian, European?" the man asked, but he was told that the person's name and personal details were classified.

One man tried hard to explain to the tribunal why he needed to confront the source of the accusations against him, in order to test their veracity. Told that a senior Al Qaeda lieutenant had recognized him in a photo, the detainee explained: "sometimes when you look at pictures, you think that you are sure that this is the right person. But you need to see the person physically and you realize that [he] is not. That's why I'd like to meet this person and see if he can see, and show him that it's not me."

Some detainees seemed to give up--to throw themselves at the mercy of the tribunal, for lack of a better option. Asked if he had any evidence to present, one man said that all he had was his biography. "I am a very correct person," he explained, who never had problems with the government. Asked again if he had anything to show the tribunal, he simply said, "I have no proof. I have been here for two years. I don't have anything."

This is Not a Courtroom

Getting straight to the point, one detainee asked his CSRT panel, "is this a regular court, or is it just hocus pocus?"

But most detainees who appeared before the tribunals were clearly hoping to receive a fair hearing. The following session is paradigmatic:

Tribunal President: "Abdenour, would you not play with your chains because the noise is interfering with the translations."

Detainee: "Yes. I am just nervous that was why. I have never been in a courtroom. I am not a person who goes to court."

Tribunal President: "This is not a courtroom, but I understand your being nervous."

Detainee: "It is not a court to you, you are saying it is not a court. But to me it is a court."

Tribunal President: "I understand."

The Tribunal President was right: CSRTs are not real courts. But Sameur Abdenour, the Algerian detainee whose freedom was at stake, was right, too: for him, they serve as courts, since they represent the only legal process that he and other detainees have been granted in nearly six years at Guantanamo.

Abdenour remains in detention. If the Supreme Court decides Boumediene/Al Odah correctly, he may someday get the chance to enter a real American court.