William Fisher: New Tests for the Supreme Court

Two of the Bush administration's signature issues may soon face further challenges in the US Supreme Court. In one case, the high court will be asked to review lower court decisions upholding the constitutionality of the Military Commissions Act. In the other, lawyers may contest the government's use of the "state secrets privilege" in a case involving the practice of "extraordinary rendition."

Both cases are being seen as tests of the court's commitment to more open government and to the constitutional concept of checks and balances between the executive and legislative branches of government. And both are likely to cast a spotlight on the new prominence of Justice Anthony Kennedy, who has become the "moderate swing vote" in close court decisions since the retirement of Justice Sandra Day O'Connor last year. Justice O'Connor was frequently the "5" in 5-4 court decisions.

The Center for Constitutional Rights (CCR), a New York-based legal advocacy organization, asked the Supreme Court on March 5th to review a lower court decision dismissing cases filed on behalf of detainees at Guantánamo Bay. The court is expected to grant review and is being asked to hear the cases in May. Under this schedule, the court would likely hand down a decision in June or July.

These would be the first cases argued before the Supreme Court challenging the constitutionality of the Military Commissions Act of 2006 (MCA). The MCA, which the Bush administration hurriedly pushed through Congress, was signed into law by the president in October 2006. It was the second attempt by the Bush administration to strip detainees of their statutory right to challenge their detention in the courts.

The Supreme Court has affirmed this right in two previous cases - Rasul v. Bush in 2004 and in Hamdan v. Rumsfeld in 2006. The court held in "Rasul" that Guantánamo is not beyond the reach of US law and that the detainees there have the right to challenge their detention in US courts; it directed the lower courts to consider the merits of those challenges. It reaffirmed that ruling in Hamdan. This would be the third time the court takes up the issue.

Despite the court's two previous rulings, nearly 400 detainees still remain imprisoned at Guantánamo Bay without charge or trial, never having had any meaningful chance to show that they deserve to be released.

By stripping federal civilian courts of jurisdiction to hear habeas corpus petitions, the MCA gave President Bush the right to indefinitely hold detainees outside the US without charges.

The appeals court's majority decision found that overruling the MCA would "defy the will of Congress," and asserted that habeas corpus does not apply to foreigners who are not in the US. It effectively ruled that the US naval base at Guantanamo Bay is a property leased by the US from Cuba, and that Cuba has sovereignty over it.

In her appeals court dissent, Judge Judith W. Rogers wrote that habeas corpus may indeed apply to foreign nationals outside the US and that the lawmakers' action had "exceeded the powers of Congress." The US Constitution stipulates that habeas may be suspended only "when in cases of rebellion or invasion the public safety may require it." This is likely to be at the heart of the appeal to the Supreme Court.

The US Justice Department expressed approval of the ruling. It believes that foreign detainees enjoy no constitutional rights when they are detained in other countries.

Shayana Kadidal, supervising attorney of CCR's Guantánamo Global Justice Initiative, said, "The Supreme Court has twice ruled in favor of the detainees. Yet hundreds of men have been imprisoned for more than five years without ever having a fair hearing because the administration, the lower courts and Congress have effectively ignored those rulings. The court needs to make plain for the third time that it meant what it said."

The current appeal to the nation's highest court involves two cases. Al Odah v. United States consists of eleven habeas petitions, including many of the first ones filed after the Supreme Court's Rasul decision. Boumediene v. United States involves six Bosnian-Algerian humanitarian workers seized by the US military in Sarajevo after Bosnian courts determined that a three-month investigation had unearthed no evidence to support their continued detention, and ordered local authorities to release them.

In Al Odah, Senior US District Court Judge Joyce Hens Green held that detainees possess "the fundamental right to due process of law under the Fifth Amendment" and that certain detainees are protected by the Geneva Conventions. US District Judge Richard Leon reached the opposite conclusion in Boumediene, ruling that the detainees possess no substantive rights to vindicate through habeas corpus. The two cases were argued together on appeal. The Court of Appeals took nearly two years to decide the cases.

The MCA is also facing legislative challenges. Congressional Democrats - now a majority in both houses - have already introduced bills, one co-sponsored by a powerful Republican, to amend the MCA and restore habeas rights for detainees.

Senator Patrick J. Leahy, a Vermont Democrat who is chairman of the Senate Judiciary Committee and that committee's senior Republican, Senator Arlen Specter of Pennsylvania, have introduced a bill that would restore habeas corpus rights.

Another bill was introduced recently by Senator Christopher J. Dodd of Connecticut, who is a candidate for the Democratic presidential nomination. The Dodd measure would return habeas corpus rights to detainees and clarify other parts of the law.

Shayana Kadidal, managing attorney of the Center for Constitutional Rights (CCR) Guantanamo Global Justice Initiative, pointed out that the MCA "also allows for evidence obtained through torture - a violation of the Geneva Conventions - and greatly widens the scope of who the president can label an 'enemy combatant'."

The second case involves a German citizen, Khalid El-Masri, who was on vacation in Macedonia when he was kidnapped and transported to a CIA-run "black site" in Afghanistan. After several months of confinement in squalid conditions, he was abandoned on a hill in Albania with no explanation. He was never charged with a crime.

With the help of the American Civil Liberties Union, El-Masri sued former CIA director George Tenet, other CIA officials, and four US-based aviation corporations, with violations of US and universal human rights laws. El-Masri claims he was "victimized by the CIA's policy of 'extraordinary rendition.'" He is seeking an apology from the CIA.

The US government responded to the suit by invoking the "state secrets privilege," arguing that a public trial of a lawsuit against a former head of the Central Intelligence Agency for abducting and imprisoning a German citizen would lead to disclosure of information harmful to US national security.

The US Court of Appeals recently ruled in favor of the government, opening the way for a challenge in the US Supreme Court. ACLU lawyers are currently considering such an appeal, contending that the Bush administration's frequent use of the "state secrets privilege" is little more than legal sleight-of-hand to keep illegal or embarrassing information hidden from public scrutiny.

Once rarely used, the state secrets privilege has over the past five years become a routine defense used by the US government to keep cases from being tried.

The privilege is based on a series of US legal precedents allowing the federal government to dismiss legal cases that it claims would threaten foreign policy, military intelligence or national security.

A relic of the Cold War with the former Soviet Union, it has been invoked numerous times since the September 11th, 2001, attacks on the World Trade Center and the Pentagon. Judges have denied the privilege on only five occasions.

It was used against Sibel Edmonds, a former Federal Bureau of Investigation translator, who was fired in retaliation for reporting security breaches and possible espionage within the bureau. Lower courts dismissed the case when former Attorney General John Ashcroft invoked the state secrets privilege and the Supreme Court upheld that decision. It has also been used to block legal actions by other "whistle-blowers" who work in the national security field.

The privilege was also invoked to stop the suit brought by Maher Arar, a Syrian-born Canadian citizen who was stopped at New York's John F. Kennedy airport on his way back to Canada from a vacation in North Africa, detained for several days without access to a lawyer or to his family, and then flown to Syria, where he was imprisoned and tortured for 10 months. He was released without charges.

A two-year investigation by a Canadian commission found that the Canadian government had provided the US with false information and that there was no basis for believing Arar had any connection with terrorists. Canada issued an apology and paid Arar more than $2 million in damages. The head of the Royal Canadian Mounted Police resigned over the matter.

The US government has consistently refused to discuss details of the case. However, Secretary of State Condoleezza Rice has admitted El-Masri's kidnapping and detention were the result of a "mistake" by the CIA. The incident threatened to sour US relations with Germany following the election of Angela Merkel as chancellor. Rice traveled to Europe in an attempt to repair the damage following Germany's opposition to the American invasion of Iraq.

The ACLU believes "there is an acute need for clarification of the state secrets doctrine because the government is increasingly using the privilege to cover up its own wrongdoing and to keep legitimate cases out of court."

The Lebanese-born Al-Masri says he took a bus from Germany to Macedonia, where Macedonian agents confiscated his passport and detained him for 23 days without access to anyone, including his wife.

He says he was then put in a diaper, a belt with chains to his wrists and ankles, earmuffs, eye pads, a blindfold and a hood. He claims he was put into a plane, his legs and arms spread-eagled and secured to the floor. He was drugged and flown to Afghanistan, where he was held in solitary confinement for five months before being dropped off in a remote rural section of Albania. He claims it was a CIA-leased aircraft that flew him to Afghanistan and that CIA agents were responsible for his rendition to Afghanistan.

The aviation companies accused of transporting him during his detention are also protected by the "state secrets" privilege.

El-Masri's suit seeks an explanation and an apology from the CIA.

If the El-Masri suit goes forward to the Supreme Court, it will also shine a bright light on the US practice of "extraordinary rendition," which involves sending persons detained by the US to prisons in countries known to practice torture.

According to Michael Scheuer, a 22-year veteran of the CIA who resigned from the agency in 2004, the practice started in 1995 during the Clinton administration as a means of holding and interrogating people suspected of having ties to al-Qaeda and Osama Bin Laden.

Secretary of State Rice has defended the practice, saying it was a vital tool in the war on terror. However, she has insisted that the US does not "send anyone to a country to be tortured."

Rice declared, "The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured." She added, "Where appropriate, the United States seeks assurances that transferred persons will not be tortured."

But most human rights and foreign affairs experts believe that such "diplomatic assurances" are worthless. They say there is ample evidence that detainees who are "rendered" to other countries are frequently subjected to torture. The US has rendered prisoners to a number of countries that have notoriously poor human rights records, including Egypt, Jordan, Syria, Afghanistan and Algeria, as well as to suspected CIA secret prisons in Eastern Europe.

The existence of the Eastern European prisons was revealed by the Washington Post. The Post reported that prisoners were routinely tortured, using such techniques as "waterboarding" - submerging a prisoner in restraints in water to convince him he was drowning - mock execution, prolonged shackling, being threatened with dogs, and "cold cell," in which prisoners are held naked in low temperatures and doused with cold water.

Rendition is known to have been a CIA practice for some years. But its frequency increased exponentially after 9/11, with reportedly dozens of prisoners being kidnapped from Italy, Sweden and other European countries. Italy has recently indicted a number of US citizens, believed to be CIA agents, for kidnapping an Italian citizen on Italian soil. The US has indicated that the accused will not be extradited to stand trial.

Earlier, a report by investigators for the European Parliament said they had evidence that the CIA had flown 1,000 undeclared flights over Europe since 2001, in some cases transporting terrorist suspects abducted within the European Union to countries known to use torture.

William Fisher has managed economic development programs in the Middle East and in many other parts of the world for the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and for the Associated Press in Florida. Go to The World According to Bill Fisher for more.

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