Forty-six pages into her ruling that for "enemy combatants" abroad, U.S. District Judge Joyce Hens Green offered an astounding glimpse into the Orwellian world of military tribunals at Guantanamo Bay, Cuba. To understand why the United States Supreme Court — and now a growing number of lower federal courts — is becoming increasingly skeptical of unfettered executive-branch power in the war on terror, all you need to do is read the colloquy between accused terror-detainee Mustafa Ait Idr and the court officer in charge of his case.
The presiding tribunal officer accuses Idr of associating "with a known Al Qaeda operative." The detainee says, reasonably enough: "Give me his name." The tribunal president says: "I do not know." Idr understandably asks: "How can I respond to this?" The tribunal president asks: "Did you know of anybody that was a member of al Qaeda?" Idr says: "No, no ..."
And then Idr went to the heart of the constitutional problem, as Judge Green sees it, with an evaluation that the judge described as "piercingly accurate."
"This is something the interrogators told me a long while ago," Idr complains during his so-called trial. "I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation."
The tribunal president then responds, presumably with a straight face: "We are asking you the question and we need you to respond to what is on the unclassified summary."
The officer then tells Idr that he "was arrested because of his alleged involvement in a plan to attack the U.S. Embassy in Sarajevo, to which Idr replies: "The only thing I can tell you is I did not plan or even think of (attacking the Embassy). Did you find any explosives with me? Any weapons? Did you find me in front of the embassy? Did you find me in contact with the Americans? Did I threaten anyone? I am prepared now to tell you, if you have anything or any evidence, even if it just very little, that proves I went to the embassy and looked (at) the embassy, then I am ready to be punished."
"These are questions that I can't even answer," Idr adds. "I am not able to answer them. You tell me I am from al Qaeda, but I am not an al Qaeda. I don't have any proof to give you except to ask you to catch Bin Laden and ask him if I am a part of al Qaeda ..."
Idr may or may not be a terrorist. He may or not have been properly detained by the U.S. military. But he's right to mock the tribunal procedures in place at Guantanamo, procedures which the United States to its great discredit says are in compliance with the latest mandate from the Supreme Court. And he's lucky that there are judges like Judge Green who are willing to recognize that even men like Idr can perceptively call a sham trial a sham trial.
Fifty years after Joe McCarthy, and 70 years after the Soviet-style trials that inspired George Orwell, the Star Chamber is back, Cuban-style, in the name of protecting freedom and liberty. This is what we are fighting for?
It's insightful and in some ways refreshing to finally read the words of a detainee after hearing so many words from administration officials and lawyers and judges and defense attorneys about the thorny issue of what rights, if any, these men and women ought to have at our military base on Cuba.
Several years ago, a federal judge and court of appeals said the men have no rights to come into American courts to seek judicial relief. Then, last June, the United States Supreme Court said that the men actually do have the right to petition the courts for help. Then, the Bush administration argued that the detainees had a right to file papers with the courts but that the courts had no authority to actually side with the detainees even if papers were filed. Then, a few weeks ago, a federal trial judge ruled that the government was meeting its constitutional obligations through the procedures put into place after the Supreme Court ruling. And now Judge Green's ruling to the contrary.
Confused? You ought to be. This is new ground for all of the jurists involved. Despite the reliance on all sorts of historical precedents, there really is no precedent for the current "war on terrorism," a war without a formal beginning or the promise of a certain end, a war in which our out-of-uniform enemies are a hybrid of soldier and criminal committing a combination of military maneuvers and plain old-fashioned violence. Judge Green's ruling — and the other Guantanamo Bay ruling earlier this year by U.S. District Judge Richard Leon — were entirely predictable after the Supreme Court last year left open the question of which tribunal procedures would comply with the justices' notion of fundamental fairness. You leave judges room to maneuver and they are going to maneuver.
Indeed, Judge Green cited the Supreme Court's buck-passing last summer to justify her action-taking this winter. If the Supreme Court didn't want the lower courts to consider the detainees' claims on their merits and to rule in their favor if necessary, Green wrote, they would have and could have said so in their June ruling. Because they didn't, Green declared, she was entitled to undertake that substantive review herself. And that review, based upon the actual words of detainees like Idr, pushed Green to conclude that the feds got it wrong last July when they created the Combatant Status Review Tribunal and a series of rules to go along with it that would apply to "enemy combatants" captured and detained abroad.
The tribunal and the procedures that support it simply don't go far enough toward protecting the rights of detainees, Judge Green ruled. The men deserve to know more about the charges against them, she declared. They deserve to have more help from attorneys, and deserve to be able to mount some sort of reasonable challenge to allegations like the ones made against Idr.
To put it even more simply, if a man's life or liberty are on the line — and in this war against terrorism, a detention for the duration of the war indeed could be a life sentence — that man deserves to know the name of the person he is accused of knowing or conspiring with in the name of terrorism.
Idr didn't get that "luxury." Judge Green thinks he should have.
Not incidentally, some of the same problems Judge Green recognized in the case of the Gitmo detainees also have surfaced before U.S. District Judge Leonie M. Brinkema, who oversees the case of confessed al Qaeda foot soldier Zacarias Moussaoui.
The Moussaoui case in Virginia has been stalled for years now over whether and to what extent the government must provide Moussaoui with a meaningful way to rebut the allegations against him and to utilize the testimony of al Qaeda leaders to do so. In both Moussaoui and Idr cases, the government seeks to punish men (in Moussaoui's case, with the death penalty) without allowing them to directly confront their accusers or to have a meaningful review of the evidence against them. It ought to tell you something about the Constitution and the judges who interpret it that even a guy like Moussaoui would engender support from the bench.
The White House could simply fix the tribunal rules to make them comport better with constitutional requirements. But if the Bush administration were willing to do that, it would have done so already. So now the government will appeal this ruling even as representatives of the detainees appeal the contrary ruling by Judge Leon.
Eventually, the federal appeals court will issue a ruling breaking the tie and then, probably, perhaps as early as next term, the Supreme Court again will have the opportunity to solve this difficult problem. Next term may seem rather quick and early for a group of justices used to thinking in terms of years and decades. But try telling that to Idr if he truly is as innocent as he claims.
By Andrew Cohen