Posted on Thu, Jun. 19, 2008
last updated: June 20, 2008 12:26:55 PM
WASHINGTON — The Taliban tortured Abdul Rahim Abdul Razak al Ginco. They thought he was a U.S. spy. Then, U.S. soldiers called the Syrian native an enemy and shipped him to Guantanamo.
Now, Ginco will be turning a spotlight back on the Bush administration itself. Newly empowered by the Supreme Court, Ginco has become the first Guantanamo detainee to demand in a U.S. federal court that the military show the hard evidence that justifies his detention. Scores of others are expected to do likewise, attorneys predict.
The war on terror may never be the same.
On June 12, the court rewrote the rules for the Guantanamo detainees in the landmark case known as Boumediene v. Bush. The 5-4 majority opinion authored by Justice Anthony Kennedy concluded that the foreigners held at the U.S. Navy's Guantanamo Bay facility were protected by the U.S. Constitution's habeas corpus protections.
The ruling empowers the detainees to obtain what Kennedy termed a "prompt" hearing into the evidence used to justify their incarceration.
Some detainees will almost certainly be released. Others will reveal evidence of mistreatment. The Bush administration will have to defend its practices in open court. The military will have to adjust its treatment of prisoners and figure out the future of Guantanamo Bay.
"It is far less likely that anybody new will brought to Guantanamo," said Brad Berenson, former associate counsel to President Bush and a former Supreme Court clerk to Kennedy. "There will probably be changes in how interrogations and captures are conducted and where they're conducted."
The ruling comes as the Bush administration is under fire for its legal justifications of harsh interrogation practices, which critics say equated to an endorsement of torture prohibited by U.S. and international laws.
This week, Physicians for Human Rights released a report that found that U.S. personnel abused detainees in Iraq, Afghanistan and Guantanamo, using beatings, electrical shocks, sexual humiliation and other practices.
The report, "Broken Laws, Broken Lives," had echoes of a five-part McClatchy investigation of Guantanamo published this week.
And Retired Army Maj. Gen. Antonio Taguba, who investigated the abuse at the Abu Ghraib prison in Iraq, accused top officials in the Bush administration of war crimes.
Administration officials have vowed to close Guantanamo some day, but say they're "stuck" with the 190 or so detainees who have been identified for release because their countries have refused to accept them back. So far, the Pentagon has identified 20 people who are to be charged with war crimes and an additional 60 others are slated to go before military tribunals.
The court's decision throws all of those cases into doubt.
"There's going to be an absolute avalanche of detainee litigation," Berenson said. "It is true that there are many people who will not get released, but there are a lot more people who will get released now than would have been if the military been allowed to maintain more control over this."
No matter what, the administration is likely to detain fewer detainees overseas in the future.
"Now that they know from the outset that the courts will be watching, the executive branch will be much more discriminating about who they detain and how they treat those who they do detain," said Martin Lederman, a constitutional law professor at Georgetown University and a former legal adviser in the Justice Department's Office of Legal Counsel under Clinton and Bush. "The purpose of choosing Guantanamo as the detention site in the first place was to allow fairly indiscriminate detention and robust interrogation and neither of those things is as feasible where there is this serious prospect of judicial oversight."
This week, the chief federal trial judge in Washington, U.S. District Court Judge Royce Lamberth, met privately with defense attorneys and Justice Department officials to begin figuring out procedures and next steps. Lamberth and the attorneys will meet again next week.
But this is new territory, and some questions may take months to answer, including:
_ How prompt is "prompt"? Will Guantanamo Bay habeas hearings take place within weeks, or months?
_ What evidence is sufficient to continue holding a detainee as a suspected enemy combatant?
_ What use will be made of information obtained through coercive or violent interrogation techniques?
The administration is expected to argue that evidence justifying detentions should remain classified — either to protect confidential sources or intelligence-gathering methods. If the government prevails, the defense could have difficulty challenging the detentions.
However, the use of coercively obtained information could prompt some judges to throw out confessions or entire cases. Newly released military documents show, for instance, that some Pentagon attorneys warned early on that certain interrogation techniques could render information unusable in future court hearings.
"Defense counsel will undoubtedly argue that any evidence derived by the prosecution must be excluded because the government did not abide by its own rules," Air Force Col. Donald E. Richburg warned in a previously secret Nov. 4, 2002 memo.
Ginco appears to be the first Guantanamo Bay detainee to seek a new federal court hearing since the Supreme Court's June 12 decision. Between 100 and 200 other detainees likely will file habeas corpus petitions in the wake of the Boumediene ruling, attorneys predict.
Each will put a human face on the abstract principles enunciated in court.
Ginco, for one, is a former university student who reports that he tried to leave a Taliban training camp after 18 days. The Taliban imprisoned him, beat him, hung him from the ceiling, subjected him to water torture and struck the bottom of his feet with clubs. He subsequently declared on Abu Dhabi television — falsely, he now says — that he was a U.S. spy.
Americans freed him, and then put him back in prison.
"What do the American forces want with me?" Ginco asked in his 2005 declaration.
Unlike Ginco, the thousands of detainees being held in prisons in Iraq or Afghanistan won't be permitted to ask that question. The court only addressed the fate of Guantanamo detainees.
Could the administration simply ship new detainees elsewhere? The justices did not appear to conclude the detainees had an immediate right to a hearing within hours or even days after being captured on the battle field, legal experts said. But the court is likely to frown on any administration attempt to detain prisoners in another location other than Guantanamo simply as a way to avoid challenges.
Although President Bush said the administration would explore legislative options, Congress is unlikely to be able to offer any remedy.
"The court has severely constrained the ability of the political branches of the government to deal with these problems," Berenson said. "It's going to be messy for the foreseeable future — messy in the court and messy on the battlefield."
The justices also did not directly address the legitimacy of the Bush administration's assertion of sweeping detention authority that critics charge swept the innocent up with the guilty, but Lederman said the court did offer "one very provocative hint."
"The court suggested that there could be constitutional limits on who could be detained indefinitely," he said. "Because of the nature of this conflict — that it may never end and there are not the usual mechanisms for the exchange of prisoners — truly indefinite, prolonged detentions might raise constitutional problems even if Congress were to authorize it."
McClatchy Newspapers 2008