Welcome, my friends, to the show that never ends. Otherwise known as the legal maze
that has become the Guantanamo Bay military tribunals.

After a recent decision by a federal district court in Washington, DC, the military
tribunals situation has gotten so legally complicated that most general observers have stopped
commenting on it. Instead, most of the recent progressive and liberal commentary has focused on
the escalating reports of abuse of detainees, including a recent report from the Red Cross. Those
reports are disturbing enough and reveal just how much of this entire process is about revenge
more than anything else. Still, this is a good time for explanation as to where military tribunal situation now stands, and what are the likely next steps.

This will be a four part discussion. The first part will review how the situation got
started. The second part will take a look at the June, 2004 Supreme Court decision and
immediate aftermath. The third and fourth parts will review the recent federal district court decision and try to predict the future--a future which could be at least as complicated as the present.

In this time of year, there is a huge temptation to say George W. Bush and Donald
Rumsfeld will be visited by three ghosts: the Ghost of Tribunal Trouble Past, the Ghost of
Tribunal Trouble Present, and the Ghost of Tribunal Trouble Yet to Come. We will leave those
analogies, pertinent though they are, for another day.

Besides the President's military order of 2001 establishing the present tribunals, the
background for legal issues surrounding Guantanamo Bay and the military tribunals involves five
documents:
--The Geneva Convention, which the United States has signed and ratified, and its
definition of "lawful combatant."
--The habeas corpus provisions of the Constitution and in separate federal statutes which
in principle allow someone who claims unlawful detention by the government, to petition the
courts to intervene and possibly order the person released.
--The lease between the United States and Cuba concerning the US Naval Base at
Guantanamo Bay, a lease approximately 100 years old that goes back to the Spanish-American
war, which gives the US complete control and sovereignty over the base so long as the US
continues to utilize it, even though the land for the base technically still belongs to Cuba.
--The "Anti-Detention Statute," eventually passed by Congress in response to the
detention of Japanese-Americans during World War II, which requires a specific authorization by
Congress before any person can be "detained" by the United States government.
--The Congressional authorization passed after September 11, 2001, for use of force by
the President in Afghanistan.

The military tribunal (military commission) situation begins with the President's Military
Order of November 13, 2001. The Order was among various actions by President Bush
immediately following the September 11 attacks. By that time, the Bush Administration
announced that it was evident the attacks were the work of al Qaida, a Muslum terrorist group
loosely organized, but directed by Osama bin Laden, believed to be headquartered in
Afghanistan and at least tacticly supported by the Taliban regime there. It was very likely that
the United States would invaded Afghanistan to dislodge the Taliban and capture bin Laden,
although in the Fall of 2001 diplomatic overtures were being made (such as demanding that the
Taliban release Osama bin Laden to US custody). Anyway, any US hopes then for a diplomatic
solution regarding Afghanistan's assistance in taking bin Laden into custody were never strong
and were fading fast.

In that Military Order, the President directed the Secretary of Defense (that is, the
Defense Department, in other words, our armed forces) to "detain" any persons anywhere in the
world who were "subject to" the Order, as designated by the President. These persons would be
al Qaida memberr who have engaged in terrorist actions against the United States, or anyone
who has harbored any person such person, so long as the President finds that it is "in the
interests" of the United States that this person be subject to the Order.

The Military Order also said that anyone subject to the Order is to be:
--detained by the Defense Department at an "appropriate location" to be designated by the
Defense Department, whether that location is "outside or within the United States,"
--treated humanely, without any "adverse distinction" based on race, color, religion, or
gender,
--allowed free exercise of religion, and
--detained "in accordance with such other conditions as the Secretary of Defense may
prescribe."

The Military Order states that if any detained persons are "tried," they are to be "tried by
military commission for any and all offenses triable by military commission that such individual
is alleged to have committed." The detained person is to have "a full and fair trial." The person
"may be punished in accordance with the penalties provided under applicable law, including life
imprisonment or death."

The Order authorized the Secretary of Defense to issue regulations for the military
commissions. The Military Order authorized conviction even for a death penalty offense to be by
two-thirds vote of the commission panel--which has now changed. It described other aspects of
the commissions which have since changed. But of the aspects of the military commissions
described in the Order which have not changed, two are notable: the commissions will have
"exclusive jurisdiction" of the detained individuals, and the detainee, after conviction, will not
have any appeal rights to any United States court (there is internal review of the commission
ruling in the Defense Department and the White House, but no appeal to any federal court).

A military commission was ordered for these detainees, rather than court martial, because
the President and the Defense Department had declared al Qaida detainees as "unlawful
combatants" ("enemy combatants"). Under the Geneva Convention there is a difference between
"lawful combatants" who are to be considered prisoners of war and are entitled to prisoner of
war status and treatment--including a court-martial type proceeding for trial of any war crimes,
and "unlawful combatants" who are not considered prisoners of war and can be subjected to
secondary treatment. To be a "lawful combatant," the enemy person must: 1) carry weapons
openly, 2) wear recognizable military uniform, 3) follow an established military-style chain of
command, and 4) abide by general "rules of engagement" for war.

The Geneva Convention is not very specific about what is to happen to "unlawful
combatants." And so we are already in rarely travelled legal territory.

Once diplomatic attempts regarding Afghanistan broke down, Congress authorized the
President to use military force in Afghanistan, and the military operation began, it was evident
that many prisoners would be taken. It became evident that these detainees would wind up at the
Guantanamo Bay naval base in Cuba, a facility mostly used until that point as a naval supply
base and as a permanent US military presence in the Carribean.

It is important to mention that Congress in its authorization of use of force in
Afghanistan, did not mention "unlawful combatant" or "enemy combatant," and did not select
Guantanamo Bay as a site for detainees.

Congress also did not issue a formal declaration of war. And Congress did not expressly authorize the use of military tribunals.

Defense Department preparations were hastily made to receive detainees at a designated, ultimately temporary site on that base, in what would be called Camp X-Ray. Since then, a more permanent facility has been constructed, called Camp Delta. Beginning January, 2002, detainees began to arrive in Guantanamo--now numbering 600. And the legal battles had begun.
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PART II OF IV

For this second part of the four-part discussion on Guantanamo Bay and military
tribunals, we'll once again mention the five major legal documents involved (aside from the
President's Military Order establishing the commissions) in the debate. They are:
--The Geneva Convention and its definition of "lawful combatant."
--The habeas corpus provisions of Constitution and federal law which allows someone
claiming unlawful federal detention to petition courts to intervene.
--The 100 year-old lease between the United States and Cuba concerning the US Naval
Base at Guantanamo Bay giving the US complete control and sovereignty over the base so long
as the US continues to utilize it, even though the land still belongs to Cuba.
--The Anti-Detention Statute, which requires specific authorization by Congress before
any person can be "detained" by the United States government.
--The Congressional authorization for the use of force by the President in Afghanistan.

The legal battle over the military commissions described in the President's military order,
and the detention of detainees in Guantanamo Bay, involves several points. Among them are:
--Automatic designation by the President and the Secretary of Defense of terrorist or al
Qaida detainees as "enemy combatants" was not proper under the Geneva Convention, because
the Convention requires a short "status proceeding" whenever any enemy person is detained, if
the detaining force has doubt if that person is a prisoner of war, to decide whether the person is a
prisoner of war, and no "status proceeding" was ever held for these detainees.
--The President's Military Order designating military commissions to try the detainees is
improper, because under the Constitution only Congress can establish a court-type legal process,
such as military commissions and Congress has not done that.
--Once a detainee is in US custody, even if not a prisoner of war, the detainee is still
entitled to certain due process guarantees, and the military commission process described by the
Military Order and the Defense Department falls short of minimum requirements for an
acceptable legal proceeding.
--The detainee should have a habeas corpus right to petition federal courts about the
overall legality of their detention and the legality of the commission proceedings.

Those arguments made their way to the federal courts on both sides of the country,
through habeas corpus petitions filed on behalf of Guantanamo Bay detainees by various civil
liberties groups, beginning in late 2002. Those petitions were filed in federal district courts in
California and in the District of Columbia. A critical first issue is whether the detainees had any
habeas corpus rights at all, because Guantanamo Bay is not US soil. So according to the
government, the detainees are outside the reach of federal courts.

The first step issue was decided differently in the trial level federal courts. On appeal, the United States Court of Appeals for the Ninth Circuit (California) and the United States Court of Appeals for the DC Circuit (District of Columbia), also decided the issues differently. The DC Circuit decided the detainees did not have habeas corpus rights in federal court, because among other things, Guantanamo Bay is not US soil and so is not part of US "sovereign territory." The Ninth Circuit decided otherwise.

Eventually, the Supreme Court agreed to hear the DC Circuit case. But the issue was
very narrow: only whether the Guantanamo Bay detainees had any habeas corpus rights in
federal courts. The Court announced that it would take the case, in late 2003. That meant that a
decision would not likely be issued, however, until 2004. Meanwhile, as 2003 turned to 2004,
no military commission proceedings had been held at Guantanamo Bay. A permanent detention
facility called Camp Delta / Camp Echo was constructed, and it looked like things were going
into a long haul.

The Defense Department would issue a detailed set of precise procedures for these
military commissions, revised at least once. These procedures included that a detainee would
have appointed counsel (although it would be from within the US military), could retain private
counsel at his own expense (under strict requirements), would be informed of charges, could call witnesses, and could attend the proceeding unless it was closed to receive sensitive information--at which point only the military-appointed counsel could be present, for the detainee.

The commission's decision on guilt could still be by two-thirds vote. But a sentence of
death must be unanimous. Defense Department procedures described a series of internal reviews
of the military commission decision, within the Defense Department and the White House. But
there still would be no appeal to federal courts. A courtroom was being constructed at the Camp
Delta area of Guantanamo Bay, the military announced chief attorneys for defense and
prosecution teams, and charges were being prepared against some detainees.

Yet, no "status proceeding" for the detainees, as required by the Geneva Convention, was ever conducted. The Defense Department simply continued its position that the detainees were
"enemy combatants," and that was that. The detainees remained in legal uncertainty as to their status, further uncertainty over military tribunal proceedings, and so held virtually
incommunicado without charge or trial, since they arrived. By June of 2004, some detainees had
been in this situation for two and half years.

The Supreme Court decision was announced in late June, 2004. To its credit, the Court
decided that the Guantanamo Bay detainees had habeas corpus rights in federal courts. The Court
brushed aside government contentions that the detainees were out of the reach of federal courts
because they were held at a facility not on US soil.

However, the Supreme Court did not immediately order that the detainees be released.
The opinion did not contain any discussion on whether the detainees are actually "unlawful
combatants" or prisoners of war, although the Court noted that "status hearings" required by the Geneva Convention, still had not occurred. The decision also contained no clear opinion on
whether the commissions established in the Military Order, were improper because Congress did not authorize them. There was no discussion on the suitability of the commission trial
procedures, under whatever due process guarantees these detainees have, even if the commissions themselves are valid. The Court did not even say when or where, exactly, habeas corpus petitions for the detainees could be brought or what issues could be raised.

In the separate but related Supreme Court decision on "enemy combatants," the Supreme
Court said the President has authority to seize persons (even US citizens) and designate them as
"enemy combatants" because that power was implied in Congress' authorization to the President
for use of military force in Afghanistan. As Commander-in-Chief and as ultimate head of the
Defense Department, the President has authority to make these designations. According to the
Court, the specific Congressional detention authorization, required by the Anti-Detention Statute was satisfied by the use of force authorization even though that authorization did not contain any mention of "enemy combatants."

So the Guantanamo Bay detainees do have habeas corpus rights. More than that, the
Supreme Court did not explain. This Supreme Court decision set the stage for the current
situation. That will be noted in Part III.


C. William Michaels is an attorney in Baltimore, Maryland and the author of "No Greater
Threat: America After September 11 and the Rise of a National Security State" (Algora, 2002). "No
Greater Threat" is the only book containing a review of the entire USA PATRIOT Act. For more
information on the book and author, contact www.nogreaterthreat.com.