Building a better kangaroo at Guantanamo Bay

David E. Graham is the Executive Director of The Judge Advocate General's Legal Center and School, US Army. He served in the US Army as a Judge Advocate for thirty-one years, specializing in International and Operational Law.

Rather than concentrating his attention on remedies available to "enemy combatants," Graham challenges the denial of habeas corpus implicit in the government's "unilateral determination that each of these detainees is an 'unlawful enemy combatant.'"

The definition of "enemy combatants" is unconstitutional, and likewise every procedure arising from it.

In truth, even a casual reading of the Opinion reveals that the Court does, in fact, speak to what it views as the specific deficiencies of the CSRT process and deals, at some length, with what it deems to be the essential requirements for a habeas writ, or its substitute, in order that such might serve as an effective and meaningful remedy for the individuals detained at Guantanamo. The District Court for the District of Columbia, the sole court that will hear the appeals of the Guantanamo detainees, is already in the process of both assessing and implementing this guidance. While this is a challenging mission, it is one that can, and will, be accomplished with skill and, very significantly, judicial alacrity.

Most importantly, the District Court will be unable to avoid dealing with fundamentally important issues raised by the Boumediene decision. Key among these is the fact that, while Guantanamo detainees may now submit writs challenging their detention by the US government, the government's very right to detain such individuals is fully dependent upon its unilateral determination that each of these detainees is an "unlawful enemy combatant", as that term is defined in the Military Commissions Act.

Given the scant attention previously paid to the definitional validity of this operative term, the principal matter to be dealt with by the District Court would initially appear to be that of the determination by the Court in Boumediene that the process currently available to detainees for the purpose of challenging their status as "unlawful enemy combatants" (a determination resulting in their indefinite detention) is an inadequate alternative to habeas. Accordingly, it would be logical to assume that the District Court's exclusive focus must be on the identification of those procedural rights and protections that are to be afforded detainees in order to construct a process that will serve as an effective habeas substitute. And, indeed, the District Court will have the task of articulating these requirements.

Graham's objection is accordingly deeper than the usual arguments about procedural remedies available to prisoners already classified as "enemy combatants," and suggests that Mr. Obama's re-invention of military commissions is just another version of the kangaroo courts which have sustained and endorsed the sadistic mistreatment of detainees at Guantanamo Bay for the last seven years.

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