Kiyemba v. Bush: “Let’s Be Very Careful Here Before We Taint People Without Evidence”

On November 24, 2008, at 9:30 a.m., the Court of Appeals of the District of Columbia Circuit heard arguments in Kiyemba v. Bush. The panel, composed of Judges Judith W. Rogers (appointed by Bill Clinton), Karen LeCraft Henderson (appointed by George H.W. Bush), and A. Raymond Randolph (appointed by George W. Bush), questioned counsel for the Uighurs and the Solicitor General in a public hearing, followed by closed proceedings to address classified issues. The argument exceeded the 15 minutes allotted to each side, ending at approximately 10:30 a.m. The argument follows an order issued by the Circuit Court (see Circuit Court of Appeals Precludes Uighurs Release into U.S.) granting the government’s request to stay the release into the United States of 17 Uighurs held at Guantánamo, as directed by District Court Judge Ricardo M. Urbina. Although a Combatant Status Review Tribunal had ruled that the men were “enemy combatants,” the D.C. Circuit concluded that the government’s information that formed the basis for its conclusion was unreliable.

Judge Rogers, who dissented from the Circuit Court’s order granting the government’s stay, questioned the Solicitor General persistently concerning the basis for the government's authority to continue to detain the 17 Uighurs. The Solicitor General, representing the President of the United States, argued that the Executive has this authority on two grounds: (1) its authority under the Authorization for Use of Military Force to wind-up operations at Guantánamo and (2) its inherent constitutional authority to detain aliens before their entry into the United States – an authority the Solicitor General argued is not subject to review. Judge Rogers questioned the Solicitor General regarding its second ground for Executive authority, noting that the case cited in support of that argument, Shaughnessy v. Mezei, relates to continued detention of aliens under the immigration laws of the United States. In addition, counsel for the Uighurs argued that Mezei involved an individual attempting voluntarily to enter the United States, whereas the U.S. government detained the Uighurs against their will.

Judge Randolph, author of Circuit Court’s decisions in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene v. Bush – all reversed by the Supreme Court – stressed that the Supreme Court’s decision in Boumediene v. Bush, although stating that GITMO detainees have habeas corpus rights, does not give detainees other constitutional or statutory rights. Emphasizing that the Circuit Court has held that these individuals have no due process rights, Judge Randolph concluded that the court would have to go en banc to rule otherwise. Judge Randolph also stated that the government has already satisfied any requirement for “conditional release,” as mandated in Boumediene, because the Uighurs are merely awaiting relocation. Judge Randolph noted that under U.S. immigration laws, terrorists include any individuals who train to commit terrorist acts in any country. Judge Rogers, noting that the government’s brief refers repeatedly to the Uighurs “dangerousness,” chastised the Solicitor General for stating that at least some of these 17 men have trained with terrorists and pose a threat to U.S. national security. She stated forcefully, “Let’s be very careful here before we taint people without evidence.”

The government argues that the appropriate remedy here is to release the 17 Uighurs to a third country. As noted by the Uighurs' lawyers, however, the government’s continued efforts to relocate the Uighurs have been unsuccessful. The U.S. government has detained these individuals for seven years, and it is questionable whether their future detention would be anything but indefinite. Although the Solicitor General recognized that the Uighurs could seek a remedy under the immigration laws of the United States, he also conceded that the immigration laws of the United States do not apply to individuals held at Guantánamo. In addition, it is difficult to believe that the U.S. government would provide any discretionary relief, such as granting refugee status or parole, where it is the government that has argued consistently that these individuals are dangerous terrorists, despite the Circuit Court’s holding that the government had insufficient evidence to deem them enemy combatants. The government’s circular logic leads to the conclusion that although these individuals have a right to habeas they have no right to a meaningful remedy.

Judge Rogers and Judge Randolph questioned both parties heavily during the argument, at times raising their voices and talking over the parties and each other. Judge Henderson, notably silent throughout most of the argument, sat between Judges Rogers and Randolph, imposing a physical and symbolic barrier between their apparent disagreements over the disposition of Kiyemba v. Bush. The Circuit Court’s ruling on the government’s request for a stay provides evidence regarding each judge’s initial leaning regarding the merits of the case. Therefore, Judge Rogers will likely dissent from an opinion in which Judges Randolph and Henderson will likely hold that the 17 Uighurs held at Guantánamo – who are not enemy combatants – can be held indefinitely without judicial review. If the Supreme Court chooses to hear this case, however, it is possible that the Court will reverse such a decision, as it has reversed Judge Randolph’s prior decisions regarding the rights of GITMO detainees.

Economic, Social, and Cultural Rights in U.S. State Courts: An Unlikely Possibility

The Opportunity Agenda recently released an updated version of Human Rights in State Courts: An Overview and Recommendations for Legal Advocacy. (To see an older version of the publication, click here.) The report states, "Federal constitutional and legislative protections tend not to include economic, social, and cultural rights that are an important part of the international human rights system. State courts, by contrast, often consider such protections and, in interpreting state law, have the independence to recognize a broader panoply of rights." Despite this statement, the publication notes only two state cases that acknowledge and apply the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the leading international agreement on these rights.

Unlike the International Covenant on Civil and Political Rights, the United States has not ratified the ICESCR. (It is worth noting that even a ratified treaty is subject to limited implementation if it is not self-executing.) Although the United States is a signatory to the ICESCR and although at least some principles embodied in the ICESCR are arguably customary international law meriting enforcement regardless of whether the treaty is ratified or implementing legislation exists, application of the ICESCR in the United States is minimal. The two cases cited by the Opportunity Agenda's report are a concurring opinion in a 1995 Connecticut Supreme Court case (233 Conn. 557 (Conn. 1995)), which relied on the ICESCR in part to argue that Connecticut's constitution requires a minimal welfare safety net for the poor, and a 1978 New Hampshire Supreme Court case (118 N.H. 713 (N.H. 1978)), which quoted the ICESCR to conclude that parents have natural rights over their children.

It appears to be far outside the realm of possibility that state courts will reference, let alone apply, the ICESRC. The recent presidential election in the United States revealed the deep-seated distaste that many U.S. citizens have for government provision of social rights. Many critics accused President-elect Barack Obama of being a socialist. As vice-presidential candidate Sarah Palin warned a crowd, "Friends, now is not the time to experiment with socialism." Many individuals agreed, claiming "Barack Obama is a socialist," "Barack Obama was a member of the New Party in the 1990s," and "[he] is a creature with at least two too many socialist ideas." Although Barack Obama won the election, many U.S. citizens voted for his opponent, and many of these individuals voiced concerns over Barack Obama's socialist tendencies.  

In light of this harsh reaction to even a hint of socialism (despite that everyone in society benefits from social programs, such as health care, public transportation, education, and police forces), it is unsurprising that state courts have only rarely referred to the ICESCR, if at all. Because many state judges are elected, they are particularly sensitive to popular sentiment. In addition to our historical underpinnings, which reflect a desire to restrict government intrusions on the rights of citizens as opposed to mandating government provision of services, the U.S. population cannot seem to fight the urge to attack anything that smacks of socialism.  

The Aftermath of Boumediene v. Bush

On October 27, 2008, Judge Richard J. Leon of the U.S. District Court for the District of Columbia issued a decision on remand from the Supreme Court in Boumediene v. Bush. In the decision he addressed the definition of “enemy combatant” that the court will use in upcoming hearings in the case. Judge Leon rejected both parties’ proposed definitions, but also rejected the proposition that the judiciary should engage in defining the term. Judge Leon concluded that “the prudent and reasonable course under these circumstances is to review and evaluate the various iterations of the definition drafted by the Executive and/or Congress over the past four years and determine whether there is one version consistent with both the AUMF and Article II.”

Upholding a definition crafted by the Department of Defense for use in Combatant Status Review Tribunals and approved by the Supreme Court in Hamdan v. Rumsfeld, Judge Leon concluded that the term “enemy combatant” includes individuals “who [were] part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

Judge Leon will hold hearings in the Boumediene case on November 6, 7, 10, 11, 12, and 13. Portions of the hearing were public on November 6, 2008, but Judge Leon has closed the court to the presence of the public and the detainees based on national security concerns. As noted in the New York Times, the detainees’ lawyers have not been permitted to discuss classified evidence with their clients. Department of Justice Lawyers submitted an additional file of sealed evidence to Judge Leon and instructed the Judge to open the envelope if the evidence presented during the closed hearings is insufficient to justify continued detention.

“I Do Believe I Have Relevant Testimony To Offer”: Vandeveld, Military Commissions, and the Use of Exculpatory Evidence

On October 21, 2008, the Pentagon announced that it had dropped war crimes charges against five detainees at Guantánamo Bay, Sufyiam Barhoumi, Binyam Mohammed, Noor Uthman Muhammed, Jabran Said Bin al Qahtani, and Ghassan Abdullah al Sharbi. The chief prosecutor at Guantánamo Bay, U.S. Army Colonel Lawrence Morris, has appointed new trial teams, and according to Clive Stafford Smith, a civilian attorney representing Mohamed, “The Military . . . plan[s] to charge [Mohamed] . . . after the election.” According to an article in The Guardian, Mohamed has accused the U.S. military of subjecting him to 18 months of torture, “including razor cuts to his genitalia.” Mohamed has sued the UK government in an attempt to procure evidence supporting his claim.

As reported by the New York Times, the former prosecutor for all five cases, Army Lieutenant Colonel Darrel Vandeveld, not only withdrew from these cases, but also criticized the Military Commissions Act trials as unfair at a pretrial hearing for a sixth detainee. Vandeveld resigned on September 9, 2008, and submitted a four-page affidavit related to the Office of Military Commission’s (OMC) trial in United States v. Mohammed Jawad. After Vandeveld resigned, he made himself available to testify on behalf of Jawad’s defense, claiming, “I do believe I have relevant testimony to offer.” According to an article in The Nation, the OMC barred him from doing so and ordered Vandeveld to undergo a mental health evaluation, despite no previous symptoms of psychological issues. As of October 20, 2008, Vandeveld was under a gag order regarding his potential testimony.

Vandeveld’s affidavit emphasizes his belief that OMC prosecutors fail to disclose potentially exculpatory or mitigating evidence to the defense in prosecutions of Guantánamo Bay detainees. As stated by Vandeveld, “evidence we have an obligation as prosecutors and officers of the court has not been made available to the defense.” OMC accused Vandeveld, in his words, of “forming an attorney-client relationship with the detailed military defense counsel for Mr. Jawad” solely for his attempts to provide exculpatory and mitigating evidence or reasons why he could not provide such evidence.

Jawad is charged with attempted murder in violation of the laws of war, as noted in a Human Rights Watch account of the trial. Although Vandeveld initially discounted defense counsel’s assertions that the Afghan militia drugged Jawad and forced him to fight, he came to believe that Jawad was a juvenile at the time of the alleged crime based on a bone scan undergone at Guantánamo Bay, and therefore the U.S. military should have segregated Jawad from adult detainees in accordance with U.S. and international law. In addition, Vandeveld eventually conceded that Jawad was subject to abuse while in detention. Jawad’s trial will continue despite a motion to dismiss based on Jawad’s torture. In a decision on September 24, 2008, Military Judge Stephen R. Henley, noting that “[the] Accused has not apparently suffered any permanent physical injuries as a result of his detention in U.S. custody,” did not determine whether U.S. military personnel tortured Jawad and concluded that the remedy of dismissal was not appropriate.