This is the third installment on the current situation of Guantanamo Bay/ Camp Delta and the detainees there. So far, we have outlined how the situation got started, what were the issues before the Supreme Court, and what the Supreme Court case did and did not do.

Once the Supreme Court made it plain that Guantanamo Bay detainees at Camp Delta had habeas corpus rights in federal courts--although the decision did not detail just what issues could be raised and when and where petitions could be filed--habeas corpus petitions for detainees were filed by various civil liberties organizations, chiefly the Center for Constitutional Rights ana ACLU. Federal courts in California decided, that the proper place for all these petitions is the US District Court in the District of Columbia. All habeas corpus petitions for Guantanamo Bay detainees have since been either filed in or directed to that federal court.

But the situation has become more complicated rather than less. And still, as 2004 comes to a close, no single military commission proceeding has been conducted from start to finish, for even one Camp Delta detainee. And there are more than 600 detainees.

After the Supreme Court's June, 2004 decision, the Defense Department took special note of the Court's observation that none of the Guantanamo Bay detainees had been given the "status hearing" to which they are entitled under the Geneva Convention, to determine whether they are prisoners of war. So on July 7, 2004, the Defense Department issued an Order establishing a "combatant status review tribunal." These are not the military commissions, but a separate proceeding to decide if the detainees are truly "enemy combatants."

These "status review tribunals" (let's call them "review panels") would be conducted at Guantanamo, based and on evidence solely from the Defense Department. The detainee would have a legal representative (appointed by the Department) but would be excluded from the proceeding if the review panel considered sensitive or classified information, although the detainee's personal representative could be present. The detainee could not be compelled to testify, but the panel could consider "any reasonably available information generated in connection with the initial determination to hold the detainee as an enemy combatant and in any subsequent reviews of that determination," and "any reasonably available records, determinations, or reports generated in connection therewith."

The review panel would not be bound by rules of evidence. That means, taken to its logical conclusion, that the panel could consider any information from any source, obtained in any way, from any one, by any method (perhaps even a prior detainee statement obtained under coercive interrogation). The Defense Department's July 7, 2004 Order does not specifically mention the Geneva Convention or prisoner-of-war criteria.

The habeas corpus petitions filed for Guantanamo detainees raised several issues that were not resolved by the Supreme Court's decision. They include the legality of the military commissions, objections to commission procedures, objections to purely internal review of commission decisions, and so on.

In the federal court in DC, Senior Judge Joyce Hens Green has taken up overall management of the petitions and will decide "common issues." But another federal judge has retained control of two cases assigned to him, raising the prospect of conflicting rulings.

In the midst of this, on November 8, 2004, a federal judge in the DC court, Judge James Robertson, issued a lengthy ruling in a Guantanamo Bay petition case assigned to him, filed for Salam Ahmed Hamdan. In that ruling, Judge Robertson observed that, for these detainees (and for all others, in fact) the Defense Department has not "convened a competent tribunal to determine" whether he is a prisoner of war. So the court implicitly decided that the "status review panels" announced by the Defense Department in July, 2004 are not a sufficient review process under the Geneva Convention. The Third Geneva Convention's requirements apply (the Court reminded the government that under the Constitution, treaties signed and ratified by the United States are the supreme law of the land).

The opinion also cast doubt on whether the military commissions, as described in the President's November 13, 2001 Military Order, are valid, since they were not specifically authorized by Congress and there has been no formal declaration of war--as was the situation for prior military commissions. Still, even if the commissions are valid, whether the detainee is a prisoner of war, first must be appropriately decided.

Judge Robertson said in his ruling: "it is at least a matter of some doubt as to whether or not Hamdan is entitled to the protections of the Third Geneva Convention as a prisoner of war," and so he "must be given those protections unless and until the `competent tribunal' referred to in Article 5 concludes otherwise." Unless that is done, Hamdan must be tried for any "war crimes" only by "a court-martial duly convened under the Uniform Code of Military Justice." There is no way that the Defense Department will let that happen.

The federal court said it might be acceptable for the detainee to be tried by military commission (assuming the commission is valid). But the court noted that under those procedures, there is only internal administrative review of a tribunal decision and sentence. The court also noted that under present procedures, a detainee can be excluded from certain parts of military commission proceedings. Even if the detainee's appointed military counsel is present at those times, that might not be enough to satisfy any basic Fifth Amendment rights the detainee might have, to be "confronted" with evidence and witnesses against him.

Under this ruling, the Defense Department must hold full status review proceedings, under Geneva Convention requirements, for all detainees who might be charged and tried by military commission, to determine if they are prisoners of war, before any military commission proceeding can be held against that person. It basically halts all military commission trials, until full prisoner-of-war status proceedings are held.

The government is appealing to the DC Circuit Court of Appeals (as noted in an earlier part of this three-part discussion, that appeals court previously had ruled in favor of the government that Guantanamo Bay detainees did not have habeas corpus rights, a decision later overturned by the Supreme Court). The Supreme Court has declined to hear the case before the DC Circuit Court of Appeals' issues a decision. It seems that the Defense Department is staying with its position that the Guantanamo Bay detainees are "enemy combatants," and are not entitled to anything more elaborate than the status review panel process announced in July 7, 2004, before they legally can be tried by a military commission, and that the commission and its procedures are valid in all respects.

Whether the DC Circuit affirms or reverses Judge Robertson's ruling, either the Defense Department or the detainee's groups will seek Supreme Court review. That means a possible Supreme Court opinion from that decision. And there are more habeas corpus petitions already pending. And there are approximately 600 detainees. And there still has been no military commission proceeding from start to finish, for any of them.

It might be time for the Administration to reconsider this entire process. It could be well into 2005, before the DC Circuit decides the current appeal from Judge Robertson's order that detainees must have a full Geneva Convention prisoner-of-war status review, or else. If that decision goes to Supreme Court, which seems inevitable, the Supreme Court's decision would be issued later in 2005. And that would mean more than four years will pass before any military commission proceeding for any Guantanamo Bay detainee has gone to completion.

Meanwhile, international pressure continues for release of some detainees (such as Australian David Hicks). There are escalating reports about abuse of Guantanamo Bay detainees. Public support for the tribunal process is fading as circumstances get more tangled. The legal situation is becoming more complex. Even if military commissions get underway, even under current Defense Department procedures, any tribunal ruling and sentence will go through internal Defense Department review. And those commission decisions might face further habeas corpus challenges, which means more federal court involvement and appeals. Beyond that, given the nearly four years which already has passed, any commission proceedings could be affected by possible stale or lost evidence.

If only a fraction of the 600 detainees go through a tribunal process, assuming that process can get underway, the internal reviews--and any federal habeas corpus petitions and appeals--could take more years. Certainly the Defense Department does not intend to try all detainees, one by one, until the cows come home. If not all of them are tried, there is no word from the Administration on what would be done with the others.

This is starting to have no up side for the Defense Department or the Administration. The Administration may have to devise some face-saving alternatives for treatment of the detainees, short of a full court martial which the Administration clearly does not want. Continuing with military commissions means continuing a process still mired in legal wrangling and, even if it goes forward, is subject already-established internal review and perhaps to habeas corpus petitions in federal courts, which would mean more federal appeals to follow from that.

Right now, the DC Circuit Court of Appeals is poised decide the appeal from Judge Robertson's ruling, which very likely will followed by Supreme Court review. There are probably late night pizza sessions underway in Defense Department and White House legal offices, right now, to figure any possible way out of this mess. Stay tuned.


Part IV - A POSTSCRIPT ON GUANTANAMO BAY

Following the three part review of the Guantanamo Bay situation and the increasing legal tangle, a few observations come from this current situation. Camp Delta indeed provides a revealing and unfolding perspective on the Administration's approach to the "war on terrorism" which is likely to persist for some time and which does not bode well for the future.

At every stage of this process, the Administration has sought to exclude both Congress and the Judicial Branch of government from its sole authority over the detainees. The Administration has attempted to construct a court-type system accountable only to itself, with no opportunity for independent review. It has fought tooth and nail to retain exclusive management of this system, whatever the cost. The Administration has ignored international law, and endeavored to establish a law of its own. And it has acted with utmost secrecy and isolation.

The President's Military Order of November, 2001 establishing the tribunals, came without consultation with Congress as a whole. If Congress has exclusive Constitutional authority to establish "inferior" courts (that is, courts lower in rank than the Supreme Court)-- and the military tribunals are not so "inferior" if they can issue and enforce death sentences--then the President cannot establish tribunals independently. Even if it fairly can be said that the country is "at war" with terrorism, Congress has not issued any formal declaration of war, as was the situation in previous military tribunal arrangements, such as in World War II.

Yet the President issued that Military Order and gave the Defense Department, that is, the armed services, full control over the detainees, their status, their treatment, and their fate. The original plan for the tribunal process set out in the Military Order allowed the tribunal to issue conviction and a sentence of death, by two thirds vote. Only after public outcry and further review were some of those standards changed.

In what might be called a stroke of legal brilliance, but which ultimately proved ineffective, the Administration chose to place the detainees in the one place in the Western Hemisphere where there was an existing US military base not technically on US soil. And it so happened, as a bonus, that the Guantanamo Bay naval facility was out of the reach of prying eyes, the pressure of the media, or public visibility. The Administration basically could do what it wanted there, while claiming at the same time that because the base is not on US "sovereign territory," the detainees on it were out of the reach of US courts.

The Administration unilaterally declared detainees as "enemy combatants" (unlawful combatants under the Geneva Convention) but it never has given the detainees the "status proceeding" that the Third Geneva Convention requires. Only after the Supreme Court's decision allowing the detainees access to federal courts, which pointedly mentioned that these status hearings still have not been held, did the Defense Department devise an alternative. Yet even this process has been implicitly declared inadequate by the latest federal district court decision, which ruled that until the detainees have the status hearing they are entitled to under the Geneva Convention, they must be tried by court-martial. (And no way will the Administration provide a full court martial proceeding for any of these detainees).

The tribunal process itself remains in the full control of the Defense Department. The procedures were designed and announced by the Defense Department. Revised regulations for the tribunals, give the detainees some protections similar to standard criminal trials or court martials: presumption of innocence, guilt by reasonable doubt, attorney to be appointed, no requirement to testify, ability to call witnesses, record made of proceedings, and any death sentence to be unanimous.

Yet, the detainee's appointed attorney will be from within the military. The panel members are all from the military. The prosecutor is from the military. The evidence presented will be from the military. No strict rules of evidence apply. The detainee is to be excluded from portions of the proceeding when sensitive evidence is considered. And the internal review of the tribunal decision will be within the military.

Any sentence will be served in a military facility--at Camp Delta itself most likely, since it appears the Defense Department is now constructing a permanent prison there. Surely any death sentence will be carried out by the military. The exact means of doing that is not defined, but a standard military execution is firing squad.

When habeas corpus petitions were first filed on behalf of the detainees, the Administration fought them vigorously. Numerous arguments were raised, technical and otherwise, including that the detainees were out of the reach of federal courts and had no habeas corpus rights at all. The Supreme Court ruled otherwise. But that has not stopped the Administration from proceeding apace.

The Administration should have guessed that the jig was up, once the Supreme Court declared the detainees had access to federal courts. Now, the entire tribunal system would be placed under judicial scrutiny. Also under scrutiny is the Administration's to claim all wisdom and authority and power for itself when it comes to the detainees. Precedent might be set that the Administration could find hard to live with, and so the situation becomes more risky as legal proceedings continue.

Beyond this, there is nothing preventing the Administration from declaring the detainees to be prisoners of war, instead of enemy combatants. There is no legal requirement that the detainees must be shipped off to a place like Guantanamo Bay and held incommunicado -- as many of them have been, for now nearly three years. And the government could have conceded that the detainees had habeas corpus rights, instead of taking the matter all the way to the Supreme Court. And losing.

Now, the Administration is facing the consequences of its own arrogance. Now, as three years are about to roll around from the time detainees first arrived at Guantanamo Bay, not one military commission proceeding has been completed. With 600 detainees, more legal battles on the way, abuse scandals growing, international pressure mounting, and public support fading, the situation is rapidly becoming difficult to maintain. But the Administration will not budge an inch.

It is interesting to observe how difficult it can be, in a civilized society that claims to be governed by the rule of law, to just line up these detainees and shoot them--which surely is what some in the Defense Department would have no problem doing. It is interesting to watch how long it has taken for fundamental issues to wind their way through our court system--and there are major issues yet to be decided including whether the military commissions themselves are constitutional, something the Supreme Court did not resolve in its Guantanamo Bay opinion.

The next few months will be most engrossing as the Camp Delta scenario continues to develop. But what should not be forgotten, as the legal wrangling goes on, is the Administration's imperious mindset when it comes to these detainees. Coupled with the other Supreme Court case which agreed, in principle, that the Executive Branch can seize and hold even United States citizens as "enemy combatants," the long term possibilities are truly disturbing.

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.