Wednesday, June 25, 2008

Gitmo & the Inter-American Commission

The central question facing the U.S. Supreme Court (left) in Boumediene was:
To what extent does the privilege of the writ of habeas corpus extend to foreign nationals detained within the unique jurisdictional circumstances of Guantánamo?
This question is situated within a larger inquiry about the extent to which various provisions of the Constitution apply extraterritorially as exemplified by such cases as United States v. Verdugo-Urquídez (1990) (finding that the warrant clause of the 4th Amendment does not apply extraterritorially). In Boumediene, the Court answered the genus question regarding habeas rights, which no doubt will shed light on the larger question in future cases.
One key factor underlying the Court’s ruling in Boumediene that petitioners are entitled to enjoy the privilege of habeas corpus was the degree of control exercised by the United States over Guantánamo (below left & right). The Court determined that although “ultimate sovereignty” over Guantánamo continues to reside in Cuba, the United States exercises “complete jurisdiction and control” (Slip Op. 23 & 25). This control is “absolute” and “indefinite” (Slip Op. 38), such that Guantánamo is within the “constant jurisdiction” of the United States (Slip Op. 39). It was also dispositive that no other law applies on Guantánamo: “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station” (Slip Op. 21). Indeed, the Court was confident that an order from a federal court would be obeyed at Guantánamo. In so holding, the Court rejected the Government’s contention that “de jure sovereignty is the touchstone of habeas corpus jurisdiction” (Slip Op. 25).
In focusing not on “the formal legal status” of Guantánamo, but rather on “the objective degree of control the United States asserted over it” (Slip Op. 24), the Court’s reasoning mirrored the functional approach adopted by many human rights tribunals that have addressed similar questions of the extraterritorial application of their constitutive treaties. In particular, the Court’s ruling largely vindicated the determinations made by the Inter-American Commission on Human Rights in an ongoing proceeding against the United States. (The Inter-American Commission on of Human Rights has jurisdiction over the United States by virtue of its membership in the Organization of American States (below right) for violations of the American Declaration of the Rights and Duties of Man.)
In these proceedings, petitioners—Guantánamo detainees represented by the Center for Constitutional Rights—had sought precautionary measures (a protective mechanism like a preliminary injunction employed to preclude the imminent perpetration of human rights violations) against the United States. Employing the lexicon from Article 5 of the Geneva Conventions, the detainees sought in particular a determination from a “competent tribunal” of their legal status, as well as of the rights and protections to which they are entitled under U.S. domestic and international law. The Commission determined that a state’s responsibility for violations of international human rights committed against a particular individual
turns not on that individual’s nationality or presence within a particular geographic area, but rather on whether, under the specific circumstances, that person fell within the state’s authority and control.

The Commission determined that because doubt existed as to the detainees’ prisoner-of-war status, they should be accorded access to a competent tribunal to determine their legal rights.
These precautionary measures were reiterated several times as new information emerged about:
► detainee mistreatment;
► the potential use of evidence extracted by torture in legal proceedings before military commissions; and
► instances of refoulement to places where detainees risked further mistreatment.
Eventually, the Commission amplified the precautionary measures when it urged the U.S. to
take all necessary steps to conduct independent, impartial and effective investigations into the allegations of the torture or cruel, infamous and unusual treatment of detainees under its custody and control, and, where such treatment is found to have occurred, to prosecute those responsible, including those who may be implicated through the doctrine of superior responsibility.

In a subsequent communication, the Commission determined that the proceedings before the Combatant Status Review Tribunals (CSRTs) and the Administrative Review Boards (ARBs) did not adequately respond to the concerns underlying the Commission’s request for precautionary measures.
In finding that the United States’ obligations under the American Declaration apply wherever it exercises "authority and control,” the Commission echoed the findings of other human rights institutions to consider the question of extraterritorial application of treaty obligations.
With the exception of a short foray into the multifaceted nature of state sovereignty, the Boumediene majority opinion is devoid of any reference to international law, as the questions presented were fully able to be resolved through a determination of the constitutional reach of the privilege of habeas corpus. Indeed, the Boumediene opinion provides a definitive history of the writ of habeas corpus—its origins (Magna Carta, left), profound purpose, vulnerabilities, and safeguards. Nonetheless, there are openings in the Court’s opinion where the universal human right to judicial review might have entered the Court’s consideration. In particular, the Court eschewed a purely originalist or historical approach to understanding the contemporary reach of habeas rights by noting the potential for the protections of the Suspension Clause to expand along with post-1789 developments (Slip Op. 15-16). The codification of rights to habeas corpus and its equivalents (e.g., amparo) in the omnibus human rights treaties represents one important modern development that provides international law fortification to the Court’s ruling. The Supreme Court's ruling demonstrates a high degree of convergence with rulings from international human rights institutions as they have grappled with similar questions about the extraterritorial reach of human rights treaties, as I have elaborated upon here.

(Partially cross-posted and expanded on Jurist's hotline.)

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