Constitution Check: Is the hunger strike at Guantanamo Bay beyond court review?
Lyle Denniston looks at the role of jurisdictional issues in the prolonged hunger strike by Guantanamo detainees.
The statements at issue:
“[Federal Judge Thomas F.] Hogan said it was ‘clear’ that Musa’ab Al-Madhawani was trying to affect the conditions of his confinement–a subject Congress specifically sought to put beyond the reach of the federal courts. … Hogan said lawyers for the prisoner were trying to ‘circumvent’ that aspect of the law. … He has self-manufactured his health situation at this point. He’s in bad health because of the self-endangerment of his life.
“A lawyer for Al-Madhwani, Darold Killmer, painted a dark picture of the situation at Guantanamo. … Mr. Al-Madhwani is dying. … Killmer argued that the claim was not over conditions of confinement, but over keeping his client alive so he could pursue other legal claims that he is unjustly imprisoned.”
– From a news story by Josh Gerstein, a reporter for Politico, on an April 15 federal court hearing, where Judge Hogan denied a request for a court order to require the U.S. military at Guantanamo Bay, Cuba, to provide “humanitarian and life-saving relief” to a Yemeni national who is among dozens of Guantanamo detainees now on hunger strike to protest their treatment. Judge Hogan ruled that Congress in 2006 had denied federal judges any authority to monitor “conditions of confinement” at Guantanamo.
We checked the Constitution, and…
Five years ago, the Supreme Court struck down as unconstitutional a law passed by Congress in 2006 to take away federal courts’ authority to rule on Guantanamo detainees’ claims that their indefinite imprisonment without criminal charges was illegal. Off and on since then, lawyers for the detainees and for the federal government have been jousting in court over how far that decision was meant to reach.
In the 2006 law, Congress took two steps to try to keep the federal courts from judging the legality of the detentions at Guantanamo. Those steps were intended to fulfill the goal of the federal government when it originally set up that military prison outside the U.S. in 2001: to keep individuals captured as terrorism suspects out of the reach of U.S. courts.
One step–struck down by the Supreme Court in 2008–barred the courts from hearing a plea for release by any detainee who sued on the theory that he was being held illegally. The court said the ancient writ of habeas corpus could not be constitutionally denied to those prisoners, without violating the Constitution’s guarantee that the writ would not be suspended except during “rebellion or invasion.”
The second step in that law explicitly denied the federal courts any authority “to hear or consider” any detainee’s lawsuit “relating to conditions of confinement.” In the running debate in courts in Washington, detainees’ lawyers have argued that the Supreme Court also nullified that step in 2008, while the government’s lawyers–in the Bush and Obama administrations–have contended that the Supreme Court left that step intact.
About Constitution Check
In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.
So far, the government has been winning on that point, in a series of lower court decisions–including one by Judge Hogan himself in 2008. The Supreme Court, those rulings concluded, nullified only the ban on habeas pleas, and not the separate ban on challenges to prison conditions.
With the Guantanamo facility now in its 11th year of operation, and with scores of the 166 detainees still there after having been confined most of those years, the tensions inside the military prison have been growing.
Much of the detainees’ deepening discontent, their lawyers have said, is that as many as 80 of them have been cleared for release, but there is now no prospect that they actually will be let go, or that President Obama will be able to close Guantanamo over repeated objections by Congress.
The tensions broke out in hunger strikes this year that the government now concedes have been joined by about 40 detainees, although lawyers insist the number is considerably higher. And in recent days, there was a near-riot as guards at the prison began taking action to force-feed some of the prisoners.
It was in that atmosphere that lawyers for a Yemeni national, Musa’ab Omar Al-Madhwani, one of the hunger strikers, recently filed their plea with Judge Hogan for access to drinkable water and for warming clothing. He complained that guards were denying him and others fresh water in retaliation for the hunger strike, and were also lowering the temperature of air conditioning as another form of retaliation.
In a statement filed with the court, Al-Madhwani said that “we are totally powerless to improve our situation. Because all dignity has been taken away from us, the only means that we have to express the utter hopelessness of our situation is by participating in a hunger strike.”
His lawyers sought to persuade Judge Hogan that his challenge was not aimed at the conditions at Guantanamo, but about whether the protesting prisoners would even survive to be able to continue to press legal claims, including claims seeking their release. Noting that the detainees have been guaranteed by court order that they will have the help of lawyers to pursue those claims, Al-Madhwani’s motion argued: “It is difficult to file and litigate a habeas petition without an attorney, but it is impossible to do so without a heartbeat.”
Government lawyers countered that Judge Hogan had no jurisdiction to examine conditions at Guantanamo, and that, in any event, Al-Madhwani and other prisoners were exaggerating the threats to their lives. The guards, the government argued, take most seriously the safety of the detainees.
After Judge Hogan received the plea for relief, he set a hearing on it. But then the judge changed the focus of the hearing from Al-Madhwani’s claims, to the issue of whether Congress had removed the court’s jurisdiction to hear such a plea. That was the hearing held Monday, leading to the judge’s conclusion that he lacked any authority to order any relief.
At some point, as conditions at the military prison off the U.S. shores remain as they are, or worsen, the issue of the role of courts–or the lack of any such role–appears certain to be an issue the prisoner’s lawyers will seek to take to the Supreme Court. The justices, however, have not been willing to review a Guantanamo case since the ruling five years ago.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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