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By J.B. Wogan December 13, 2012

Many enemy combatants still lack habeas rights

When Barack Obama ran for president in 2008, he told voters he strongly supported efforts to restore habeas corpus rights to people the U.S. government had deemed enemy combatants.

Habeas corpus is the legal right, embedded in the U.S. Constitution, which allows any prisoner held by the American government to challenge his or her imprisonment. A president may suspend that right only "when in Cases of Rebellion or Invasion the public Safety may require it," according to the Constitution.

Suspension of habeas corpus has been rare in U.S. history, though it has happened -- most notably when President Abraham Lincoln suspended habeas corpus rights during the Civil War.

Protecting habeas rights was a priority for Obama early in his career as a U.S. senator. Project Vote Smart, a website that collects public statements by politicians, shows 21 instances where he mentioned it in press releases, stump speeches, media interviews and presidential debates.

"This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person," Obama said in speech on the Senate floor in 2006. "By giving suspects a chance -- even one chance -- to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit."

At the time of Obama's comments, roughly 400 terrorism suspects were locked up in the Guantánamo Bay Naval Base prison in southern Cuba, down from nearly 700 in 2003. President George W. Bush's administration had held those prisoners indefinitely without charging them or trying them beginning in 2002 -- in the aftermath of the Sept. 11, 2001 attacks on the United States. Prisoners did have access military tribunals, but the tribunals did not allow detainees to see, hear and contest all evidence being used against them.

Supreme Court rulings in 2004, 2006 and 2008 confirmed that prisoners at Guantánamo did have habeas rights and the military tribunals were not sufficient substitutes. The U.S. government transferred more than 500 prisoners before Obama took office (166 remained in November 2012). Under the Obama administration, however, the force of those rulings have weakened.

"President Obama is steadily returning Guantanamo to the secretive and hopeless internment camp that he vilified as a candidate," wrote Azmy Baher, legal director of the Center for Constitutional Rights, in an August op-ed in The Washington Post.

Human rights groups have criticized the Obama administration for its insistence on appealing decisions by the U.S. District Court for the District of Columbia that have favored Guantánamo prisoners' petitions. At the appeals level, the Obama administration has successfully persuaded the court to keep almost every Guantánamo petitioner in detainment.

Baher's op-ed noted that the court of appeals has "imposed legal standards that make it virtually impossible to win a habeas case." He also wrote that the Supreme Court has refused to review the appellate court's standards, signalling "the end of meaningful judicial oversight of Guantanamo."

In January, the American Civil Liberties Union also condemned the backsliding under Obama, saying Guantánamo was not of his "making, but it is now one of his choosing." The civil rights group also denounced efforts by Congress to pass a law that would make permanent the indefinite military detention of anyone without charge or trial, so long as they are deemed an enemy combatant. Finally, the group echoed Baher's assessment that the Supreme Court "has stood by as the D.C. Circuit has effectively gutted meaningful habeas review."

The limited rights afforded to prisoners in Guantánamo are still better than those at the Parwan detention facility in Afghanistan, according to Golnaz Fakhimi, an attorney litigating on behalf of U.S. detainees brought into Parwan from other countries. Human rights attorneys have argued that a Supreme Court ruling in 2008 about Guantánamo detainees should extend habeas rights to non-Afghan detainees -- deemed enemy combatants by the U.S. government -- in Parwan as well.

In October the Obama administration persuaded a federal judge that prisoners at Parwan -- placed there by the U.S. military -- do not have habeas rights, largely because Afghanistan is an active theater of war and the detention facility is not entirely under United States' control, unlike Guantánamo. This followed a unanimous decision in 2010 by the D.C. appeals court, applying the same rationale.

We requested a comment from the White House about concerns raised by Baher, Fakhimi and others, but did not hear back.  

Obama promised to restore habeas rights for people the U.S. government deemed enemy combatants. Four years later, prisoners in at least at two U.S. military detention facilities either have no meaningful way to challenge their confinement, or no legal right at all. We rate this a Promise Broken.

Our Sources

Interview with Golnaz Fakhimi, staff attorney for the International Justice Network, Dec. 7, 2012

Interview with Scott Roehm, The Constitution Project, counsel for the Rule of Law Program, Dec. 11, 2012

Center for Constitutional Rights, Guantanamo Habeas Scorecard, May 30, 2012

The New York Times and National Public Radio, A History of the Detainee Population(accessed on Dec. 12, 2012)

The Oyez Project at Chicago-Kent College of Law, Rasul v. Bush,

The Oyez Project at Chicago-Kent College of Law, Boumediene v. Bush

The Oyez Project at Chicago-Kent College of Law, Hamdan v. Rumsfeld

U.S. District Court for the District of Columbia, Al-Maqaleh v. Gates (accessed on Dec. 11, 2012), Executive order: Review and disposition of individuals detained at the Guantanamo Bay Naval Base and closure of detention facilities, Jan. 22, 2009

SCOTUS Blog, No habeas rights at Bagram, May 21, 2010

Lawfare Blog, Johnson v. Eisentrager, 339 U.S. 763 (1950) (accessed on Dec. 11, 2012)

The New York Times, The court retreats on habeas, June 13, 2012

The Washington Post, Obama turns back the clock on Guantanamo, Aug. 16, 2012

The New York Times, Justices, 5-4, Back Detainee Appeals for Guantánamo, June 13, 2008

Los Angeles Times, The detainee problem; Holding terrorism suspects indefinitely without a trial offends American notions of due process, Sept. 23, 2012

U.S. Constitution, Article 1, Section 9

American Civil Liberties Union, National Security: Detention (accessed Dec. 6, 2012)

American Civil Liberties Union, National Security: ACLU Statement on Ten Years of Guantánamo, Jan. 9, 2012

American Civil Liberties Union, Don't Be Fooled by New NDAA Detention Amendment, Nov. 29, 2012

Salon, The Obama GITMO myth, July 23, 2012

Salon, Supreme Court restores habeas corpus, strikes down key part of Military Commissions Act, June 12, 2008

Salon, Repulsive progressive hypocrisy, Feb. 8, 2012

Salon, Three myths about the detention bill, Dec. 16, 2011

Salon, Congress endorsing military detention, a new AUMF, Dec. 1, 2011

Salon, The We-Are-At-War! mentality, Dec. 3, 2011

U.S. Constitution, Article 3 Section 3 (accessed on Dec. 11, 2012)

Project Vote Smart, Habeas Corpus -- Amendment No. 5087, Sept. 27, 2006

Angie Drobnic Holan
By Angie Drobnic Holan May 27, 2009

Obama's remarks imply some may not have habeas rights

Congress has been pushing back against President Barack Obama's plan to close the prison at Guantanamo Bay, where terrorism suspects are held. Republicans have introduced a "Keep Terrorists Out of America Act" that would require the Obama administration to get permission from states before it could move Guantanamo inmates to locations in the United States, and Democrats have thus far refused to give the White House funding to close the facility.

Obama again pushed for closing the prison during a speech at the National Archives on May 21, 2009.

"Rather than keeping us safer, the prison at Guantanamo has weakened American national security," Obama said. "It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it."

Also in the speech, Obama talked about how the Guantanamo prisoners would be handled in the legal system. He described five types of prisoners and how they would be handled:

1. Prisoners who will be tried in the federal courts;
2. Prisoners who will be tried through military commissions (though Obama said he intends to modify rules for military commissions set by the Bush administration);
3. Prisoners who have been ordered released by the federal courts (Obama will honor those orders, he said);
4. Prisoners who will be turned over to other countries;
5. Prisoners who cannot be tried in court or through commissions but who will not be released.

It's this fifth category that appears to potentially violate Obama's promise on habeas corpus. During his speech, Obama said these would be the hardest cases to resolve:

"We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al-Qaida training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

"Let me repeat: I am not going to release individuals who endanger the American people. Al-Qaida terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again."

Obama also said, however, that there must be some form of limits on this time of detention.

"They can't be based simply on what I or the executive branch decide alone," Obama said. "That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified."

Sen. Russ Feingold, D-Wis., praised Obama's speech overall in a letter he wrote to Obama. But he also told him he was concerned about prolonged detentions.

"While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked," Feingold wrote. "Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial."

Civil rights advocates have also criticized the framework Obama laid out in his speech. Obama's categories sound like "the worst kind of forum-shopping," said American Civil Liberties Union attorney Ben Wizener in an interview with Glenn Greenwald , a civil rights attorney and blogger for

"In order to remove this blot on our legal system and on our international reputation, President Obama is starting with the proposition that anyone who his intelligence agencies consider to be dangerous must be detained," Wizener said. "When you start with the conclusion, which is that we'll decide if someone is dangerous, and we'll detain that person, and then work backwards to a set of permanent legal rules that will allow us to reach that outcome, you can see why I might be concerned that we're creating a permanent power vesting in the president holding anybody that he wants to hold."

Obama implied in his speech that indefinite detentions must have some oversight mechanism. We feel it is too early too definitively determine whether those detentions violate Obama's promise to restore habeas corpus for enemy combatants until we know more about the details of that mechanism.

Still, Obama is essentially saying that some prisoners will face neither courts nor military commissions of any sort, but will be imprisoned anyway. This is not a good sign for him keeping his promise on habeas corpus for enemy combatants. So we rate the promise Stalled.

Our Sources

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