International Protections and Laws Against Detainment
Standards for protecting individual's against indefinite detainment, or detainment without trial come both as normative protections that are embodied in internationally-acknowledged Declarations (non-binding) and international treaties (binding) formed through the United Nations.
The Universal Declaration of Human Rights provides the following articles with respect to imprisonment or detention: "Article 9 - No one shall be subjected to arbitrary arrest, detention or exile.
Article 10 - Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."53
While it is a non-binding agreement, the UDHR can be understood to reflect a common standard of norms and protections that all member nations shall strive to "secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction."54 Therefore, there are no strict provisions for the implementations for member states to guarantee these rights, but instead only to strive for the recognition and observance of their existence.
International treaties, on the other hand, are binding to its ratifying parties.
Both the 1907 Hague Conventions and 1949 Geneva Conventions (ratified by the US 53 The Universal Declaration of Human Rights, General Assembly of the United Nations: 10 December 1948 http://www.un.org/Overview/rights.html
in 1955)55 and their subsequent Additional Protocols create binding standards for the conduct of war, including protections for prisoners of war and detained civilians.Further, the International Covenant on Civil and Political Rights and the American Declaration of the Rights and Duties of Man require that persons be tried before courts previously established in accordance with pre-existing laws.
Chapter III provides in-depth and pragmatic analysis to the applicability and enforceability of these international rights-institutions. As such, I only hint at this point to the fact that these institutions exist and the ratification of the United States within them. It is important however, to note that many petitioners in legal cases put forth to the Supreme Court have referenced the binding-nature of the Geneva Conventions to United States laws and statutes.
Contesting Detainment at Guantnamo Through the Supreme Court More than two and a half years after the first detainees arrived at Guantnamo the U.S. Supreme Court pronounced on the appeals of sixteen detainees.56 In the joint case, the petitioners questioned their detainment by the U.S. government to the Supreme Court, as it is the strongest guarantor of the Constitution. The question they presented was "Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantnamo Naval Base, Cuba."57
56 Rasul v. Bush 542 U.S. 466 (2004)
In reply, the courts noted that U.S. courts had traditionally been available to foreigners and nonresidents. As such, the courts noted that the habeas challenges under 28 US.S. 2241 - regarding a court's jurisdiction on having the power to grant the writ of habeas corpus within U.S. law - authorized district courts even in cases where habeas corpus extended to aliens.
"The Detained Petitioners are not, nor have they ever been, enemy aliens, lawful or unlawful belligerents, or combatants in any context involving hostilities against the citizens, government or armed forces of the United States...The Detained Petitioners are not, nor have they ever been, 'enemy combatants'..."58The courts further stated that detainees were able to contest the legality of their detention, understanding that the executive branch of the government was holding them indefinitely and without trial.
Hamdi v. Rumsfeld59 the second case decided in that summer, concerned not the detainment of nonresident aliens, but of an American Citizen. In it, the petitioners asked: "Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an 'enemy combatant'? ...
58 First Amended Peition for a Writ of habeas Corpus Pp 21-22 Boumedien v. Bush No. 1;04- cv-01155 (D.D.C. Aug. 20, 2004)
59 Hamdi v. Rumsfeld 542 U.S. 507 (2004)
In a habeas corpus proceeding challenging the indefinite detention of an American citizen seized abroad, detained in the United States, and declared by Executive officials an "enemy combatant" does the separation of powers doctrine preclude a federal court from following ordinary statutory procedures and conducting an inquiry into the factual basis for the Executive branch's asserted justification of the detention?60
The Court ruled that the executive had the power to incarcerate a U.S. citizen who was accused of terrorism without trial. Yet, regarding the indefinite detention of prisoners, the court strategically stood strong, reaffirming the "fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law."61 Further, the O'Connor plurality opinion relied on the Geneva Convention in stating that Habeas Corpus should be available to an "alleged enemy combatant." The ruling, issued on the same day as Rasul v. Bush, held that the U.S. courts had the jurisdiction to hear habeas corpus petitions filed by the Guantnamo Detainees, citizen and non-citizens alike.
However, the Hamdi plurality held that the AUMF authorizes the President to detain 'enemy combatants' a term it understood to mean individuals who were "part of or supporting forces hostile to the United States or coalition partners ... and who engaged in an armed conflict in the United States there."62 To the dissenters in the Hamdi plurality, Justice Scalia and Justice Stevens, the Executive power of detention could only come from two different models: either Congress needed to suspend the