I wanted to do a special post today for the tenth anniversary of the opening of Guantanamo Bay detention camp, the extra-judicial facility where the United States government holds prisoners from the recent wars in Iraq and Afghanistan. 779 prisoners have been held in Guantanamo Bay over the last decade. Exactly 6 have been charged of a crime. This post analyzes the legal issues surrounding Gitmo and finds that it is an illegal violation of the 5th amendment of the Constitution (“due process”).

The Supreme Court and the Constitution (5th amendment) have established that the President can legally suspend habeus corpus (in other words, hold prisoners indefinitely without charging them) in times of war. But in the constitution, the power to declare war is listed in section 8 of article 1, the article that defines Congress (gotta love those checks and balances). Therefore, it is the Congressional Authorization for the Use of Military Force (AUMF), a law passed on October 3rd, 2001, that gives the President the power to suspend habeus corpus today.

But the AUMF requires that the President’s use of war powers must be “necessary and appropriate.” What do these terms mean? I believe these terms qualify the President’s ability to use war powers. Suspension of habeus corpus is “necessary” if the detainee in question has been established as an “enemy combatant,” and it is “appropriate” if the detainee has received minimum due process in this determination.

First, it is important to establish that Federal Courts have jurisdiction to hear petitions of non-citizens. The issue was first broached in Johnson v. Eisentrager (1950), when the Supreme Court found “no right to the writ of habeas corpus” for 21 German Nationals convicted of war crimes after World War II. Absent express legal jurisdiction to hear the case, the Court was forced to examine the specifics and weigh them against Constitutional fundamentals. Referencing six critical facts of the case, the court ultimately decided against the petitioners because they were:

“(a)… enemy [aliens]; (b) had never been or resided in the United States; (c) [were] captured outside of our territory and there held in military custody as a prisoner of war; (d) [were] tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and [were] at all times imprisoned outside the United States”

The Court did not rule that foreign nationals have no rights, but that in this instance their rights were respected by giving them access to a military tribunal. But most important was the fact that the petitioners were never present within the territorial jurisdiction of any U.S. District Court. Therefore, the Court ruled that they were not even able to hear the petition.

The Court’s understanding of statutory jurisdiction to hear habeas corpus petitions from non-citizens has changed since the Eisentrager case. The law states that courts can hear habeus corpus petitions “within their respective jurisdictions” from any person who claims to be held “in custody in violation of the Constitution or laws or treaties of the United States” 28 U. S. C. §§2241. In Ahrens v. Clark (1948), the Court interpreted the phrase “within their respective jurisdictions” to mean “within their territorial jurisdictions.” It is based on this understanding that the Eisentrager court does not see statutory jurisdiction for the case before them in 1950. But the Court overturned the language of Ahrens in Braden v. 30th Judicial Circuit Court of Ky. (1973), stating that a Court acts “within [its] respective jurisdiction” within the meaning of §2241 as long as “the custodian can be reached by service of process.” This is the correct interpretation because habeas corpus is a writ governing the conduct of the custodian itself and not a right extended only to U.S. citizens.

Now that it has been established that foreign nationals have access to U.S. courts to demand habeas corpus, we will examine the President’s conduct to determine if it has been “necessary and appropriate.” In Hamdi v. Rumsfeld (2004) the Court addresses this issue at length; ultimately deciding that properly constituted military tribunals are the only way to establish a person’s status as an “enemy combatant.” This is important because a person has to first be established as a threat in order for the suspension of habeas corpus to be “necessary” as per the AUMF. Furthermore, the court ruled that “properly constituted” tribunals are those established consistent with the Geneva Convention. Absent this process “a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.” In Hamdi, the petitioner was accused of being an enemy combatant based entirely on a brief filed by Assistant to the Undersecretary of Defense Michael Mobbs, which he was not entitled to rebut; a clear violation of due process.

The relevant statutes governing military tribunals are found in the Uniform Code of Military Justice, (UCMJ) signed into law in 1951, with the intent of making the laws governing military commissions “uniform insofar as practicable.” In Hamdan v. Rumsfeld (2006), the Court ruled that the tribunals established by President Bush in his November 13th Executive Order and Commission Order No. 1 substantially deviate from tribunals he is authorized to create under the UCMJ for many reasons. First, the defendant and their attorney may be forbidden to view certain evidence used against them. Also, the defendant’s attorney may be forbidden to discuss certain evidence with the defendant. Additionally, traditionally disallowed evidence, such as hearsay, unsworn live testimony, and statements gathered through torture are allowed if judged to have any “probative value.” Finally, appeals to decisions made by the commissions are not heard by courts, but only within the Executive Branch.

Because the tribunals used to try suspected terrorists and determine their status as “unlawful combatants” are not consistent with either the Geneva Convention or the UCMJ, they are illegal—and therefore “inappropriate” in accordance with the AUMF—and cannot be used to try suspected terrorists the way that properly constituted tribunals could be used to try the petitioners in Eisentrager. Therefore it is necessary to establish some legal method to review the status of detainees, and only once this method has established that they are indeed “unlawful combatants” is the suspension of habeas corpus truly “necessary and appropriate.”

The Obama administration has continued the unlawful practices of the Bush Administration, institutionalizing indefinite detention and banning Khaled Sheikh Muhammad from the civilian court system. These practices are illegal and must be stopped.