Private: Guantanamo Bay Detainees: A 9-1-1 Call for Constitutional Due Process

By Maj. (Ret.) Eric Montalvo, Esq., Founding Partner, The Federal Practice Group Worldwide Service, and former Marine Corps Judge Advocate (JAG). Eric currently specializes in national security law and military law. He is noteworthy for his work in securing the release of Mohammad Jawad, one of the youngest Guantanamo Bay detainees.

Imagine for the moment you are walking along a sidewalk and suddenly you hear and feel an explosion. As you run for your life someone tackles you and gives you over to the police. Within hours you are hooded and handed over to a foreign power and a month later put on a plane to somewhere. The foreign power who has detained you continues to make allegations that you were somehow involved in the explosion which you repeatedly deny. The foreign power "invents" a legal process which is found to be inadequate, the second version is found inadequate as well, and they are now working on a third version. The judges, prosecutors, and most defense counsel have no experience as it relates to national security litigation and capital punishment. You are introduced and assigned to military defense counsels who wear the same uniform as the prosecutors. Men, some of whom may be totally innocent, awake every day to this indefinite detention. This is the reality of the Military Commissions system for detainees at Guantanamo Bay.

Trial by the Military Commissions does not present defendants with a meaningful opportunity to challenge the bases of their detention. Even a determination by the Commission that it does not have personal jurisdiction over a defendant, or, after trial, that the defendant should be acquitted, does not have a binding effect. The Bush Administration policy maintained a policy of indefinite detention regardless of the outcome as described by the Pentagon Press Secretary Geoff Morrell whereby he stated at a news conference, "even if he [the detainee] were acquitted of the charges that are before him, he would still be considered an enemy combatant and therefore would continue to be subjected to-subject to continued detention." It is a policy that is currently being followed by the Obama Administration and, in the meanwhile, detainees are held with no hope of release.

The primary purpose of drafting the Constitution was to limit government power. The Due Process guarantees found in the Bill of Rights were meant to empower individuals against arbitrary government action. This is a bedrock principle of American jurisprudence and is being completely ignored as a policy concern in relation to Guantanamo detainees.

Ironically strong notions of Due Process are embedded in the current version of the Rules for Military Commissions (R.C.M.). Pursuant to R.M.C. 707, "within 120 days of the service of charges, the military judge shall announce the assembly of the military commission, in accordance with R.M.C. 911." This is being completely ignored. For example, in the case against Mohammad Jawad charges were preferred in October, 2007. The charges were referred to trial on January 30, 2008, Mr. Jawad was arraigned in March, 2008 and trial on the merits was scheduled to commence on January 5, 2009. Pursuant to the President of the United States in Executive Order 13492, issued on January 22, 2009, the United States requested a 120-day delay in order to participate in the review of the status of Guantanamo Bay detainees, and military commission process. In May a second stay was requested which has since expired and we are currently in a third period of delay. Based upon the current state of things, Jawad would still have been waiting for his day in court almost two years later.

Luckily Jawad was able to secure relief through the habeas process after a protracted campaign of deflect and delay by the U.S. Government. He is the exception to the norm. What is remarkable is that Jawad was purportedly one of the easiest cases to dispose of. This was confirmed by the prosecution who chose the case for its ability to result in a quick clean conviction under the then newly established Military Commissions Act. One can only imagine how long the process will endure for some of the more complex cases still pending. Most disconcerting is the pool of detainees who have not even been charged and therefore no assessment has been made by a detainee proponent as to their innocence.

The travesty is that all of the discussion about closing Guantanamo and fixing the system has resulted in little or no movement regarding the disposition of these cases. The government continues to frustrate investigative efforts on the premise that the system will change and therefore any expenditure of effort is a waste of government resources.

The Muslim Chinese Uighers currently at Guantanamo are known to be innocent and releasable yet they continue to endure detention. The irony of depriving men of freedom out of concern for a country who has one of the worst documented human rights records in the world is disconcerting at best. As the Obama Administration's one-year countdown turns from months to days, a clear due process system needs to be in place to ensure that detainees can get out of legal limbo. It is in times of conflict that the Republic must hold tight the principles of the rule of law lest we spoil the very thing that we have sacrificed so many to protect.

Access to Justice, Criminal Justice, Executive Power, Juvenile Justice, Prison Policy/Incarceration, Procedural Barriers to Court, Supreme Court