Since 9/11, the American Bar Association (ABA) has responded admirably to challenging and troubling terrorism issues, strongly advocating for the rule of law, due process, and a fair and just legal process. Within months after the 9/11 attacks, the ABA formed a Task Force on Terrorism and the Law, followed by a Task Force on Treatment of Enemy Combatants, and later a Task Force on Domestic Surveillance.
These task forces, as well as the ABA Sections of Individual Rights and Responsibilities (IRR) and Criminal Justice, and other entities, submitted to the House of Delegates resolutions that established strong ABA policies on terrorism-related issues. These resolutions were later relayed in testimony before Congress and dozens of advocacy letters to congressional leaders, the U.S. Justice and Defense Departments, and the White House.
The ABA called for an end to torture and other cruel or degrading interrogation techniques and urged that those engaged in such activities be fully investigated and, where warranted, criminally prosecuted. The ABA took principled stands against government excesses and misuse of domestic surveillance, the USA PATRIOT Act, and the Foreign Intelligence Surveillance Act.
Guantanamo detentions and military commission trials have been a major focus of attention. The ABA has urged that Guantanamo detainees not be indefinitely detained and that they be guaranteed the full rights afforded by the Uniform Code of Military Justice, access to counsel, meaningful judicial review, and “the opportunity to receive the zealous and effective assistance of Civilian Defense Counsel” in military commission trials. The ABA opposed congressional attempts to strip courts of jurisdiction to consider habeas corpus claims for detainees and, in 2009, urged that, with limited exceptions, those charged with violations of criminal law be prosecuted in Article III courts.
At the urging and with the coordination of IRR, the ABA filed amicus curiae briefs in important Guantanamo cases, including the Second Circuit Court of Appeals in Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), rev’d 542 U.S. 426 (2004), and the Supreme Court cases of Hamdi v. Rumsfeld, 542 U.S. 507 (2004) and Boumediene v. Bush, 553 U.S. 723 (2008) (briefs can be downloaded from www.americanbar.org/groups/committees/amicus/1998_present.html).
As the ABA’s designated observer for the first military commission hearings in 2005, I saw firsthand that the system was “defective and unworkable,” and denied “basic due process protections that have been a hallmark of our military justice system” (see Neal R. Sonnett, Guantanamo: Still a Legal Black Hole, 33:1 Human Rights 8 (2009)).
After the 2005 military commission system was held unconstitutional in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Congress enacted the Military Commissions Act (MCA) of 2006, later amended by the MCA of 2009, which replaced the “unlawful combatant” terminology with the new status and terminology of “unprivileged enemy belligerent.” It made some improvements in the military commission system, but it is still fundamentally and inherently flawed, has brought international condemnation, serves as a major recruiting tool for terrorist organizations, and continues to be a dark stain on the U.S. system of justice.
Since Boumediene revived habeas challenges, petitioners have won thirty-eight of the fifty-nine cases heard by district courts when the government was unable to prove, even by a preponderance of the evidence, that they were not wrongfully detained. While government appeals have reversed four of those cases, it is clear that these Guantanamo detainees were certainly not the “worst of the worst.”
Although President Barack Obama announced his intention to close the detention facility in Guantanamo Bay and try most cases in Article III courts, these plans have been thwarted at every turn by Congress, forcing the administration to reverse course and ramp up the military commission cases, which are likely to continue for the foreseeable future. However, of the 171 prisoners now at Guantanamo, a fraction of the 779 detainees held there since 2002, only about three dozen have been designated for trials, and most have not yet been formally charged.
These actions by Congress ignore the facts that federal courts have convicted hundreds of terrorists, while only six Guantanamo cases have reached resolution, with two trials, one uncontested, and four plea bargains with short sentences.
The ABA continues to monitor military commissions and legislation affecting Guantanamo. In 2009, the ABA filed an unprecedented amicus brief before the Military Commissions Trial Judiciary that opposed a Protective Order that would have seriously diminished the fairness of the hearings. In June 2011, the ABA Board of Governors unanimously authorized a letter to the secretary of defense calling for greater transparency in military commission trials. Also in June, the ABA sent letters to Congress opposing legislative proposals that would further limit the president’s options in Guantanamo.
The ABA must, and will, continue to speak out to ensure that the U.S. response to 9/11 does not tear at the Bill of Rights, the very fabric of its great democracy; does not erode cherished constitutional safeguards; and strives to strengthen the rule of law. IRR has been, and will continue to be, an important and substantial contributor to these efforts.