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Governs the Making of Photocopies Or Other Reproductions of Copyrighted Materials Warning Concerning Copyright Restrictions The Copyright Law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted materials. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be used for any purpose other than private study, scholarship, or research. If electronic transmission of reserve material is used for purposes in excess of what constitutes "fair use," that user may be liable for copyright infringement. University of Nevada, Reno The Rights of Combatants: How the Guantanamo Bay Cases May Apply to Other Issues in the War on Terrorism A thesis submitted in partial fulfillment of the requirements for the degree of Bachelor of Arts in Political Science and the Honors Program By Jennifer Musser Dr. William Eubank, Thesis Advisor May 2012 UNIVERSITY OF NEVADA THE HONORS PROGRAM RENO We recommend that the thesis prepared under our supervision by JENNIFER MUSSER entitled The Rights of Combatants: How the Guantanamo Bay Cases May Apply to Other Issues in the War on Terrorism be accepted in partial fulfillment of the requirements for the degree of BACHELOR OF ARTS, POLITICAL SCIENCE ______________________________________________ William Eubank, Ph. D., Thesis Advisor ______________________________________________ Tamara Valentine, Ph. D., Director, Honors Program May 2012 i i Abstract Located on the island of Cuba, the Guantanamo Bay Naval Base has become home to hundreds of detainees who are suspected of belonging to or aiding terrorist organizations throughout the war on terror. Almost immediately after the base started being used as a detention center for the enemy combatants, legal issues began to arise over what constitutional provisions would be afforded to detainees and the applicability of United States laws in such cases. The Supreme Court assumed the role of deciding these various matters, the heart of which was determined in four key cases: Rasul v. Bush (2004), Hamdi v. Rumsfeld (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008). The unique nature of detaining combatants at Guantanamo Bay, including the location of the base on foreign soil and the sensitive national security matters involved, makes this situation unlike any other before in history. Since the conclusion of these cases, further legal questions regarding the War on Terror have arisen. Is the President authorized to order the killing of a United States citizen abroad? Can Congress legislatively authorize the indefinite detention of captured combatants? This paper will analyze the legal reasoning, as expressed in the majority opinion of the Court, in each of the Guantanamo cases in order to answer these and other questions. The analysis of the cases regarding detention at Guantanamo Bay Naval Base provide important insight into the legality of other issues in the War on Terrorism, and the legal reasoning can be used to predict the outcome of pending and future cases likely to be heard by the Supreme Court. ii Acknowledgements I would like to give my sincerest gratitude to my mentor, Dr. William Eubank, for all the time he has dedicated to reviewing my work. He has been an invaluable resource in this process, whether it was to answer any questions I had or keep me on track in terms of my progress. I would also like to thank Dr. Tamara Valentine, Director of the Honors Program. She has provided endless guidance not only when it comes to this thesis, but also throughout the entire four years I spent in the Honors Program. iii Table of Contents Abstract …………………………………………………………………………………... i Acknowledgements ……………………………………………………………………… ii Table of Contents ……………………………………………………………………….. iii Introduction…………………………………………………………………..................... 1 History of Guantanamo Bay Naval Base ………………………………………………... 3 “The Great Writ”: The Origins of Habeas Corpus …………………………………….… 8 Prior Precedent …………………………………………………………………………. 13 Establishing Jurisdiction: Rasul v. Bush ……………………………………………….. 20 Rights of Citizen Combatants: Hamdi v. Rumsfeld ……………………………………. 26 Military Commissions and Congressional Authority: Hamdan v. Rumsfeld ………....... 32 The Suspension Clause: Boumediene v. Bush ………………………………………….. 37 Common Holdings and Themes ………………………………………………………... 41 Implications- How the Legal Principles Apply to Other Current Issues A. Anwar Al-Aulaqi: Targeted Killing of Combatant American Citizens ……. 46 B. National Defense Authorization Act ……………………………………….. 54 Conclusion ………………………………………………………….............………….. 58 References ...………………………………………………………………......……….. 60 Official Documents …………………………………………………………………….. 64 Appendix I: Text of Mobbs Declaration………………………………………………... 66 1 Introduction Much controversy has surrounded the United States’ decision to detain suspected terrorists and affiliates at the Guantanamo Bay Naval Base following the attacks of September 11, 2001, and the subsequent beginning of the War on Terrorism. What one scholar has referred to as a “legal black hole” (Steyn, 2004), the detention of combatants at a naval base on foreign soil has raised important constitutional questions regarding jurisdiction, the legality of executive ordered detention, and the use of military commissions. In a series of cases, Rasul v. Bush (2004), Hamdi v. Rumsfeld (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008), the Supreme Court issued decisions that would have a significant impact on the rights of all detainees in custody. The current situation at Guantanamo is unlike any other in history; during oral arguments in the Rasul case, Justice Ginsburg states, “I think Guantanamo, everyone agrees, is an animal, there is no other like it” (cited in Kaplan, 2005, p. 831). Its unique location “in, but not within” Cuba, a country with which the United States has severed diplomatic relations, creates a situation in which Guantanamo “is not clearly under the sovereignty of either nation” (Kaplan, 2005, p. 832). Despite the resolution of the four above mentioned cases and as the War on Terror persists, legal issues continue to abound; the killing of suspected citizen combatants, the recent signing of the Defense Authorization Act, and continued concern over expanded presidential power during war are all issues that continue to maintain a place in the political rhetoric that surrounds the war. This paper will discuss the history of Guantanamo Bay and the origins of the writ of habeas corpus, and then evaluate the facts and opinions of the Court in these four cases in 2 order to make the argument that the legal principles set forth in these cases apply to the current issues mentioned above. 3 History of Guantanamo Bay Naval Base Located approximately four hundred miles from Miami, Florida, the Guantanamo Bay Naval Base is the United States Navy’s oldest overseas installation (U.S. Navy, n.d.). The initial presence of the United States in Guantanamo Bay occurred during the Spanish-American War. Cuba had been a Spanish colony since its discovery by Christopher Columbus in 1494 (Joint Task Force Guantanamo, 2010). After an explosion sank the USS Maine in the harbor near Havana, Cuba, in 1898, the Congress of the United States declared war against Spain thus commencing the Spanish-American War. Coinciding with the war was a revolt started by the Cuban people, who had become displeased with Spanish rule (Joint Task Force Guantanamo, 2010). The war ended later in 1898, and Cuba was granted its independence in 1902. An initial agreement was passed through Cuba’s Congress setting forth terms for the establishment of a naval base at Guantanamo. Shortly after, an appendix was included in the Constitution of the new republic of Cuba that also provided for the establishment of a naval base (Joint Task Force Guantanamo, 2010). Both countries signed a formal agreement in 1903 (U.S. Navy, n.d.). The agreement leased a 45-mile area of land and water to be used as a coaling, and later, a refueling station (U.S. Navy, n.d.) In regards to control over the base, Article III of the agreement states the following: While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over [emphasis added] and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of 4 eminent domain with full compensation to the owners thereof. (“Agreement between the United States,” 1903)1 Another treaty signed in 1934 again certified the lease between the two countries and United States’ control over the territory. More importantly, this treaty included a provision stating that the lease could not be terminated unless the governments of both countries agreed to it or the United States abandoned the base (U.S. Navy, n.d.), which effectively established the agreement as perpetual. This provision, Article III of the treaty, reads as follows: Until the two contracting parties agree to the modification or abrogation of the stipulations of the agreement in regard to the lease to the
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