In 2021, the President has taken action to finally close the Guantanamo Bay prison. He achieved this by releasing some prisoners, transferring other prisoners to prisons within their native countries, and not admitting any new prisoners captured in Iraq, Syria, Venezuela, or Afghanistan. Some of these new prisoners went to such “resorts” as Abu Ghraib in Iraq, while others went to Bagram Airfield in Afghanistan and Balad Air Base in Iraq, both of which are under the control of U.S. military forces. One of the prisoners at Balad Air Base, Ali Hussein Akbar, a Jordanian citizen, mailed a petition for writ of habeas corpus to the U.S. District Court for the District of Columbia. In his petition, Mr. Akbar claimed that he was imprisoned as an “enemy combatant” six months prior, but that the U.S. military had not to date filed formal charges against him, the military had not afforded him an opportunity to answer any charges, the military had not given him the assistance of counsel, and the military had not given him a hearing before a neutral tribunal to determine the truth or falsity of the filed charges.
Within the time allotted for filing a response to the habeas corpus petition, the U.S. Army, with the assistance of the Department of Justice, filed a motion to dismiss the habeas corpus petition. How should the district court decide?
Rossum, Ralph, Alan G. Tarr, and Vincent Muñoz, American Constitutional Law: The Structure of Government. Vol. I, 1tth ed. New York: Routledge. ISBN 978- 0367233334.
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Detainee’s writ of habeas corpus
Does the petitioner Guantanamo detainee have the constitutional privilege of habeas corpus?
The Detainee Treatment Act, 1005(e), 109 Pub L No. 148, 119 Stat. 2680, 2742 provided that no court, justice or judge shall have jurisdiction to neither hear nor consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States Department of Defence at Guantanamo Bay, Cuba (Rossum et al., 2019). The section further provides that the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to receive and review decisions of the Combatant Status Review Tribunals. This section was an amendment of the 28 U.S.C.S 2241.
In Boumediene v. Bush, the Supreme Court in 553 U.S 723, 128 S. Ct. 2229 (2008) held that under the Suspension Clause, the writ of habeas corpus may be suspended only in cases of rebellion or invasion when the public safety needs it (Rossum et al., 2019). The procedures outlined in the Detainee Treatment Act, they argued, were not an adequate and effective substitute for habeas corpus as detainees were not allowed to present exculpatory evidence that was not part of the record in the Combatant Status Review Tribunal proceedings. In their estimation then, 28 U.S.C.S 2241(e) was in effect, an unconstitutional suspension of the writ of habeas corpus (Rossum et al., 2019). Given the already lengthy delay, it was not obligatory for the detainees to exhaust the review procedures in the appellate court before proceeding with their habeas actions.
Hamdi v. Rumsfeld in 542 U.S 507, 124 S. Ct. 2633 (2004) also established that the defendant was entitled to contest the factual basis for his detention before a neutral decision maker. The citizen-detainee, while seeking to challenge his classification as an enemy combatant, was entitled to receive notice of the factual basis of his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker (Rossum et al., 2019).
Under the Suspension Clause, the only two grounds provided for the suspension of the habeas corpus are rebellion or invasion when the public safety demands it. The Supreme Court in Boumedieme v. Bush argued that the Suspension Clause had full effect at Guantanamo Bay. Likewise, in this case, the Suspension Clause had full effect for the detainee. The Court went further to assert that the procedures outlined in the Detainee Treatment Act were not an adequate substitute for habeas corpus as detainees were not allowed to present exculpatory evidence. A similar dimension is seen in this case as the detainee has not been afforded the opportunity to answer charges nor been provided with counsel assistance. As the court did uphold in Boumedieme v. Bush, the habeas corpus petition cannot be dismissed.
In addition, the detainee was not given a hearing before a neutral tribunal to validate the charges filed against him. This is in direct contravention of the precedent set by the Supreme Court decision in Hamdi v. Rumsfeld where it was established that the detainee is entitled to receive notice of the factual basis for his classification as an enemy combatant, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker. It is difficult to argue that this case has an element of rebellion or invasion that puts the lives of the citizens of the United States at risk. It is only fair then that Mr Akbar’s petition for habeas corpus be granted as well.
The District Court should, in line with the Supreme Court precedents set in the recent past, find that Mr Akbar is entitled to the habeas corpus given the already lengthy delay of six months, and effectively find the lifting of the writ of habeas corpus for Mr Akbar as an enemy combatant unconstitutional.
Rossum, R., Tarr, A.G., & Muñoz, V. (2019). American Constitutional Law: The Structure of Government. Vol. I, 11th ed. New York: Routledge. ISBN 978- 0367233334.