Several habeas cases before Judge Walton include claims that go beyond the immediate issuance or not of purely habeas relief (whatever that turns out to be - as discussed in prior posts. Those claims go to the conditions of confinement - and the impact (if any) of the Geneva Conventions on those conditions of confinement.
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Analysis: Diminishing “Geneva rights”?
Friday, April 10th, 2009 9:33 pm | Lyle Denniston
Analysis
From early in the U.S. government’s detention of individuals rounded up in the “war on terrorism,” the prisoners have been attempting to gain the protection of a major human rights treaty: the series of agreements known as the Geneva Conventions – a part of international law for 60 years. The Conventions bar the use of torture, abuse, humiliation and acts of indignity against those held in captivity during wartime.
Lawyers in the Bush Administration considered them “obsolete” after the terrorist attacks of Sept. 11, 2001. President Obama, on taking office in January, issued an Executive Order (No. 13,491) decreeing that every person “detained in any armed conflict” is entitled to the Geneva protections.
Detainees’ lawyers, however, would like to solidy Geneva rights so that they did not depend only upon presidential order. Instead, they want the federal courts to have a role, too, with the authority to directly order the U.S. government to respect Geneva rights at Guantanamo. U.S. District Judge Reggie B. Walton is now considering that plea in a series of cases, including Bostan v. Obama (District Court docket 05-883). ...
The DoJ's Opposition makes several bullet points (with of course much longer discussion under each):
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I. Habeas cannot be used to challenge conditions of confinement.
II. The Military Commissions Act removes jurisdiction to entertain the substance of petitioners’ claims.
II.[sic! III.] The Geneva Conventions are not privately enforceable.
The DoJ's most telling point, however, is that the DC courts have ruled against detainees on the same type of claim:
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(brief, p.8)
As the Court of Appeals and four Judges of this Court have concluded, however, Section 2241(e)(2)’s removal of jurisdiction remains intact after Boumediene. See Kiyemba v. Obama, No. 05-5487, --- F.3d ----, 2009 WL 910997, at *2 (D.C. Cir. Apr. 7, 2009); Al-Adahi v. Obama, No. 08-280, 2009 U.S. Dist. LEXIS at **10-16 (D.D.C. Feb. 10, 2009) (Kessler, J.); Khadr v. Bush, 587 F. Supp. 2d 225, 234-37 (D.D.C. 2008) (Bates, J.); In re Guantanamo Bay Litig., 577 F. Supp. 2d 312, 313-14 (D.D.C. 2008) (Hogan, J.); In re Guantanamo Bay Litig., 570 F. Supp. 2d 13, 17-18 (D.D.C. 2008) (Urbina, J.).
Another weakness in the detainees' claims (those based on conditions of confinement) is that they seek to apply the whole of GC Convention III (the PW/POW convention) to the Gitmo detainees. The applicable GC rights are those under Common Article 3 (contained in all four GCs), as the most recent Executive Order makes clear:
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(brief, p.2-3)
Indeed, just two days after taking office, the President issued an Executive Order addressing the treatment of persons in United States custody “to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions.” Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan 22, 2009) Introduction. This Executive Order provides that:
Consistent with the requirements of . . . Common Article 3 [of the Geneva Conventions] . . . individuals detained in any armed conflict . . . shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.
Exec. Order No. 13,491 at §3(a); see also id. at §3(c).
The DoJ's position gained traction from the very recent decision in a detainee case from an armed conflict of long ago - Noriega. This decision should be of interest to JTF and others who were involved in his capture.
Here is the bottom line:
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(opinion, p.2)
Appellant General Manuel Antonio Noriega appeals the decision of the United States District Court for the Southern District of Florida denying his petition for writ of habeas corpus. The district court determined that the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention” or “Convention”), does not foreclose the extradition of prisoners of war and that the United States had sufficiently complied with its obligations under the Convention. We affirm and hold that § 5 of the Military Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, § 5(a), 120 Stat. 2600, 2631, note following 28 U.S.C. § 2241 (2006), precludes Noriega from invoking the Geneva Convention as a source of rights in a habeas proceeding and therefore deny Noriega’s habeas petition. We also conclude that extradition would not violate the Convention.
Noriega was designated a prisoner of war and accorded the benefits conferred on prisoners of war by the Third Geneva Convention.
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(opinion p.3, fn1)
The district court determined that Noriega was a prisoner of war under the Third Geneva Convention in response to Noriega’s concerns about the type of care he would receive while in custody. United States v. Noriega, 808 F. Supp. 791, 793–96 (S.D. Fla. 1992) (Hoeveler, J.) (“Noriega I”). Specifically, the district court found that the hostilities in Panama constituted an “armed conflict” within the meaning of article 2, that Noriega was a member of the armed forces of a party to the conflict under article 4, and that the district court was a “competent tribunal” to determine his prisoner of war status under article 5 of the Third Geneva Convention. Id. This determination was not appealed.
Note that Noriega was also convicted of crimes: In April 1992, Noriega was convicted for RICO and RICO conspiracy (18 U.S.C. § 1962(c) and (d)), conspiracy to import and distribute cocaine (21 U.S.C. § 963), distribution of cocaine (21 U.S.C. § 959), manufacture of cocaine (21 U.S.C. § 959), conspiracy to manufacture, distribute, and import cocaine (21 U.S.C. § 963), and unlawful travel to promote a business enterprise involving cocaine (18 U.S.C. § 1952(a)(3)).
So, this 11th Circuit case also reinforces the point that I have been making that detention under the GCs is one thing; and that prosecutions under domestic criminal law are quite another thing. What is interesting is that Noriega's status was determined under the GCs and continues as such, while the length of his confinement was determined by the criminal sentences (all running concurrently).
Since the armed conflict with Panama ended long ago - with long term success as JTF has recently posted, his term of confinement as a POW would have ended long ago.