Guantanamo Bay Detainees

1. Authority to Detain

   1. Nature of the law of war.

   2. Detention authority derived from authority to wage war (Hamdi), saying that if you have the authority to kill them, you have the authority to detain them

      1. Bush admin: emphasized presidential power, AUMF

      2. Obama admin: we can detain based on AUMF (we can engage militarily with Al Qaida and other orgs that caused 911)

         1. Habeas cases

2. Interrogation

   1. Bush Administration

      1. February 7, 2002 memo: “treat humanely, consistent with military necessity” where military necessity trumps everything

      2. Although Nuremberg Tribunal rejected this– can’t violate the law of war because of military necessity

   2. 5th amendment due process: “shock the conscience”

      1. Bush Admin argues that torture was OK if it didn’t shock the conscience.

         1. Hamdan: CA3 applies, not US Constitution

   3. Executive Order 13440 (July 20, 2007): harsh interrogation techniques are lawful under CA3

   4. GC3 standard, and Field Manual 2-22.3: no form of coercion, including unpleasantness (basically) is permissible (different from voluntariness standard)

      1. Law enforcement interrogation = voluntariness

         1. Military Commissions Act 2009

            1. “any alien unlawful enemy combatant is subject to trial by military commission”

               1. So CSRT = determines whether enemy combatant

               2. MCs = determines guilt

         2. Warsame Example: Warsame picked up between Somalia and Yemen, held on a ship for a couple months, and interrogated using a voluntariness standard (in crim. pro, a statement is admissible if it is voluntary without coercion)

3. What if it’s hard to tell combatant status?

   1. GCIII:5 – minimum administrative tribunals and

   2. GCIV: 78 Review

      1. Occupying power may, for reasons of security, assign persons to residence or internment. Procedure must include the right of appeal, which should be quickly decided. If decision is upheld, it should be subject to periodical review, if possible every 6 months, by a competent body set up by said power.

      2. When in doubt, a competent tribunal must determine the status of the person. Usually, the capturing military decides.

   3. “Competent” does not necessarily entail procedural protections.

      1. US interpretation: does not require individual determination.

      2. Bush released blanket finding that no person in Alcaida or Taliban met the GCIII:4 definition (this was changed in Hamdi)

         1. Our competent tribunal = Combatant Status Review Tribunal

            1. Set up Post-Hoc, by Congress, July 7, 2005 after Hamdi

            2. Set of tribunals for confirming whether detainees had been correctly designated as “enemy combatants”. CSRTs are supposed to be a stand-in for habeas.

            3. 2 outcomes

               1. Enemy combatant

               2. No longer enemy combatant

4. Cases

   1. Hamdi – minimum Adminstrative due process under GCIII:5a is

      1. notice

      2. and opportunity to respond

   2. Hamdan –

      1. Rule: No gap (when in doubt, use CA3)

      2. Rule: CSRT not proper because not created by congress.

      3. Rule: MCs did not comply with international law, specifically to CA3

      4. But note: CA3 does not explicitly state “competent tribunal”

         1. CA 3 (1)(d) the passing of sentence and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples

   3. Boumediene – found our military tribunals were not enough. Habeas sliding scale technique:

      1. How much control is being exercised over the place of the individuals being detained?

      2. How much interference with military operations might be caused by introducing judges and lawyers into the detention review processes?

      3. Held: Gtmo detainess were entitled to Habeas

      4. Held: you can’t legislate away Habeus

   4. Maqaleh (district court only) – individuals held at Bagram had no entitltement to habeas review because there is no evidence that the government was trying to park the person there to avoid Habeas.

5. Obama Administration

   1. March 7, 2011 Executive Order 13492

      1. modeled on law of war and some domestic law

      2. Does not address the legality of detention, but requires that if question of legality arises during periodic review, case must be immediately transferred to Secretary of Defense and Attorney General

      3. Periodic review

      4. Must provide notice & reasons for detention to each detainee

      5. Detainee can respond in writing

      6. Hearing & prompt decision

      7. “vigorous efforts to determine transfer location” if detention status determined to be unlawful

   2. 2012 National Defense Authorization Act, sec. 1024

      1. Detainees must be given hearing before a military judge, who will make his status determination, and representation by military counsel in that proceeding if the detainee so chooses

6. Other treatment issues:

   1. Minimum Humane Treatment Standards

      1. CA3

         1. “persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely”

         2. prohibits: “outrages upon personal dignity, in particular humilitating and degrading treatment”

         3. affords: all the judicial guarantees which are recognized as indispensable by civilized peoples

      2. Art 75 of API

         1. Prohibits torture & threats

         2. Requires: impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure (lays out conditions for this)

            1. Requires individual determinations (not blanket)

            2. Right to witnesses, etc

      3. Art 4 of APII

         1. Relates only to “all persons who do not take a direct part or who have cased to take part in hostilities, whether or not their liberty has been restricted”

         2. “they shall in all circumstances be treated humanely”

   2. Detention standards

      1. GC3 governs POW treatment

      2. Obama Exec. Order on Guantanamo requires that app detainees be held in conformity with all applicable laws governing the conditions of confinement, including CA 3 (January 222, 2009)

         1. Walsh Report

            1. Feb 23, 2009

            2. Known officially as “Review of Department Compliance with...

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