U.S.S.C. Decisions on Gitmo May Set Precedent for Iraq Cases

By MIRIAM FURMAN

 

February 19, 2007 (NEW YORK)--The U.S. Supreme Court’s upcoming decisions on Guantanamo detainee cases Boumediene v. Bush and Al Odah v. United States may influence the way the U.S. handles potential legal challenges from 15,000 alleged enemy combatants being held in Iraq, said Brennan Center for Justice counsel Jonathan Hafetz. He made his comments during a lecture sponsored by the Columbia Chapter of the American Constitution Society.

 

Although the vast majority of detainees in Iraq are foreign nationals, the Brennan Center, a public policy institute at NYU School of Law, represents two American citizens, Shawqi Omar and Mohammed Munaf, who have been detained there by U.S.-led coalition forces. The Court will hear those cases, Geren v. Omar and Munaf v. Geren, on March 25.  Hafetz noted that the U.S. government is taking the position that constitutional rights don’t apply to these men because a multi-national force oversees their detainment.

 

In his own work for the Center involving a case heard by the 4^th Circuit Court of Appeals, Hafetz has argued on behalf of a Qatari citizen who is the only “enemy combatant” detained within the United States.  The case, Al-Marri v. Pucciarelli, was reheard en banc at the request of the government on October 31, 2007. The decision is pending.

 

Decisions in the spate of cases at Gitmo and in Iraq involving detainees’ rights are expected to clarify whether detainees have the constitutional right to habeas corpus or whether military tribunals created by the Military Commissions Act and the Detainee Treatment Act have jurisdiction, Hafetz explained. He alleged that tribunals adhere to “a less robust review process” than the federal court system requires.

 

The United States has levied criminal charges against only 10 to 15 people out of the 750 it has placed in custody at Guantanamo, said Hafetz. Although many have been released, 275 are still detained there.

 

In remarks following the program, he called the current system of Combatant Status Review Tribunals (CSRT) a sham because “there’s no presumption of innocence, detainees aren’t represented by lawyers, and evidence obtained through torture is considered. CSRTs have tried 500 cases and found 95 percent of defendants to be combatants,” he said.   He also asserted that the tribunals reheard the remaining defendants’ cases several times until virtually all defendants were declared combatants.

 

The next administration will have to deal with “the real challenges of handling detainee cases,” he said, not only those in Guantanamo, but those that may come from the far greater number of detainees in U.S. and multi-national forces custody in Iraq.