On April 3, when circulating a HAARETZ editorial on the Israeli practice of "administrative detention" of Palestininians, I wrote:
"The editorial states: 'Detention without charges or trial is an instrument used only by dictatorshps.'
"Fair enough, but, in this context, it may be worth noting that almost all of the roughly 780 unfortunates who have been held at the Guantanamo Bay military prison, including many of the 31 who remain, have been detained without charges or trial.
"Finding international conventions according rights to prisoners of war inconvenient, the U.S. government created a new status previously unknown to international law -- 'enemy combatants', to whom no rights whatsoever were accorded."
The NEW YORK TIMES news report transmitted below is relevant in this context.
Of course, the occupied Cuban territory of Guantanamo Bay was chosen as the site for caging "enemy combatants" precisely in the hope and expectation that it would serve a legal black hole where no laws, American, Cuban or international, would apply and where no rights would exist.
So it has served and continues to serve.
https://www.nytimes.com/2023/04/04/us/politics/guantanamo-appeals-court-due-process.html
Appeals Court Punts on Due Process Rights for Guantánamo Detainees
The case could have resolved an important question about the scope of rights for noncitizens held at the wartime prison.
By Charlie Savage and Carol Rosenberg
WASHINGTON — A federal appeals court on Tuesday deferred on deciding whether detainees at the Guantánamo Bay wartime prison have due process rights under the Constitution, pulling back from what could have been a landmark decision about legal protections for noncitizens held there.
Instead, the full Court of Appeals for the District of Columbia Circuit issued a ruling that said a 55-year-old Yemeni man, Abdulsalam al-Hela, could continue to be held without charge or trial at the American naval base in Cuba. The appeals court also directed a lower court to take a new look at his case.
The full set of opinions was not released because they have to be redacted to remove classified details. But an unclassified one-paragraph order issued by the court made clear that the judges had decided not to resolve the issue that had prompted close scrutiny of the case.
Stephen I. Vladeck, a University of Texas law professor who specializes in topics like the federal courts and national security, said the opinion was modest because it punted on making any broad conclusion about the due process clause.
“It appears that the full D.C. Circuit has avoided that question and resolved the case for now on narrower grounds,” he said.
Terrence Clark, a spokesman for the Justice Department, declined to comment.
The question of whether the Constitution’s guarantee that the government cannot deprive people of “life, liberty or property, without due process of law” applies to noncitizens detained at Guantánamo has been raised since the George W. Bush administration first took wartime prisoners there in 2002.
The case of Mr. Hela, who has been held there since 2004, had looked as if it might resolve that question, establishing a precedent that could have far-reaching implications for terrorism detainees in American custody.
While it is not always clear what process is “due,” a precedent establishing that the clause covers such detainees would give them a greater basis to ask courts to scrutinize how the government treats them. It could cover matters as wide-ranging as their continued detention, their medical treatment and which evidence gathered after torture may be used against them.
But the appeals court said that regardless of whether the due process clause applied to Mr. Hela, a so-called habeas corpus court hearing he had received to examine the evidence against him was sufficient to keep holding him as an “enemy combatant” even though two decades had passed since he was taken into custody. As a result, the court apparently did not need to decide whether the clause protected him. At the same time, it left open another question that could eventually raise the due process issue again: whether a finding by the interagency Periodic Review Board that his continued detention is no longer necessary makes any difference.
In the meantime, the Periodic Review Board in June 2021 approved Mr. Hela for transfer if the receiving country could fulfill security conditions. But like 10 other Yemenis at Guantánamo who have been approved for transfer, he cannot be repatriated because the United States considers Yemen, in the middle of a civil war, too unstable to monitor his activities. So far the United States has found no country to receive him.
Against that backdrop, the court instructed the U.S. District Court for the District of Columbia to first determine whether President Biden had the legal power to keep holding an enemy combatant under a 2001 law that authorized the war against Al Qaeda, known as the Authorization for Use of Military Force, despite the review board’s determination that the detainee can be transferred.
If the district court decides that the authorization contains no implicit time limit on a president’s power to keep detaining a wartime prisoner whom the government no longer considers necessary to hold, it should then take up the question of whether the Constitution, under the due process clause, imposes such a limit, the appeals court said.
If the Biden administration finds a country to transfer Mr. Hela to before those questions are resolved, it could render the matter moot without any determination on the due process issue.
Lawyers for Mr. Hela have said he wants to be reunited with his wife and be able to see his sole surviving child, a daughter he last saw as a toddler. Yemen’s neighbor, Oman, has taken in 30 former Guantánamo prisoners, mostly Yemeni citizens.
In Guantánamo proceedings for the U.S.S. Cole bombing case, Mr. Hela has been described as a former colonel in the Yemeni intelligence service. He was captured in Cairo in September 2002 — he has said he was “kidnapped” — and was held by the C.I.A. in its secret black site network for about two years.
Last year, he was brought to court to testify about what he knew about the Qaeda bombing of the destroyer in Yemen in October 2000. He refused to testify, and was returned to his prison cell.