The Epiphany Approach to Habeas Corpus During the Military Commissions Circus

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With the recent hunger strikes by prisoners at Guantanamo Bay that have captured global attention, in April 2013, President Obama vowed to eliminate the indeterminate detention facility and ostensibly the extra-judicial tribunal system that were initiated during the Bush Administration. It all began pursuant to Congress’s Authorization for Military Force that empowered the President to respond to individuals, groups, and states with a connection to 9/11, the Executive assumed carte blanche for a detention system that whittled down thousands of militant-detainees inside Afghanistan to several hundred “worst of the worst” who were transported across the Atlantic Ocean to a makeshift prison at the U.S. military base on Guantanamo Bay, Cuba, a location with an ambiguous legal status. The sweeping Commander in Chief authority commingled detainees who should have had distinct classifications under international law, resulted in edicts that directed coercive interrogation methods to garner “evidence,” imposed prolonged detention without explanation or proof of guilt, denied individual liberty and human rights protections to foreigners that would have been afforded to nationals, downplayed torture and Geneva Convention violations as unintended incidentals to mandatory programs that would preempt security threats, and exploited rhetorical discourse of fear to justify the system. However, after five years of indefinite detentions without clear cause, the Supreme Court held that the President did not possess the constitutional authority to unilaterally constitute the tribunals. After the tribunals began to regularly try suspects without interruption, scholars and some attorneys and military officers involved in the secretive tribunal process, condemned the awry procedures and evidentiary rules that guaranteed guilt, and even went so far as to deem them “kangaroo courts.” With only six defendants convicted in the military commissions system through March 2013, this article attributes the distance between public perception and successful convictions to the Executive’s ability to shepherd discourse by casting unchallenged assumptions of pervasive peril, which abets an unchecked power and dodges scrutiny with national security prerogatives. The system upended civilized legal procedures and human rights for over a decade. Reactive common law courts struggled to check the system, but could only gradually rebuild human rights protections closer to the point of origin by periodically visiting detainee appeals. Do false perceptions about the level of peril indirectly initiate a process to deny habeas corpus?