Author & Speaker

Guantanamo

The Supreme Court’s 5-4 decision in Boumediene v. Bush recognizing the right of detainees in Guantanamo to press habeas corpus petitions to their continued detention, is a huge moment in the nation’s constitutional and political life.
FULL DISCLOSURE: I submitted, with assistance from colleagues at Ropes & Gray, a brief amicus curiae on behalf of historians and scholars in support of the detainees. We reviewed the history of the adoption of the habeas corpus provision in the Constitution during the Convention of 1787, and the contemporary discussion of that provision, and argued that the provision had to apply to the Military Detention Act and rendered it unconstitutional. The Court adopted our view (and those of many others, of course) in its decision.
It will take some time to digest what the Court really has done — the majority opinion is 70 pages long — but I would make a few points at the outset.
— The Court has rejected the combined actions of the President and Congress in dealing with the challenging security threats of the current terror environment. That is a remarkable assertion of judicial power within the constitutional structure. Political backlash is entirely possible.
— This decision over Guantanamo is very much, it seems to me, a tip-of-the-iceberg situation. The procedural rights of the 270 individuals at Guantanamo has relatively little to do with the daily lives of Americans. Far more immediately relevant is the amount of eavesdropping/monitoring/invasion of privacy that is going on as part of the security machinery. Yet it is a symbolic statement of great magnitude that constitutional rights must be respected in times of crisis, too. And they must be respected for those whom we otherwise may instinctively despise and mistrust.
— This was a bipartisan judicial action. Three of the five Justices in the majority were appointed by Republicans: John Paul Stevens (President Ford), David Souter (President Bush I), and Anthony Kennedy (President Reagan).
— As a lawyer who has litigated habeas cases that took years — in one instance, close to a dozen years — I can attest that there is little prospect that a federal habeas court will release a Guantanamo detainee within even the next year. But this ruling should force Congress, the military, and the current Administration to start thinking hard about what we are doing in Guantanamo and how we get out of the mess. Guantanamo indicts us before the world of not remaining true to our ideals. The Court has reminded the nation of that. I hope this is a landmark change towards beginning to honor those ideals.
— The early press coverage trumpeted Justice Antonin Scalia’s statement in dissent that, as a result of the Court’s decision, “Americans will be killed.” When I read that assertion, it seemed a terrible thing for a Supreme Court Justice to say, an example of demagogery much to be deplored. Most of all, it seemed based on notions of causation similar to those that attribute weather catastrophes in North America to the beating of a butterfly’s wings in Africa. There are many “causes” of a terrorist incident — the confrontation between the west and Islamism, the decades of corrosive violence over Israel, the wholesale export of America’s crude and offensive cultural products, America’ s support for corrupt and oppressive regimes in the Middle East, and the individual dreams/hates/attitudes of the terrorist who commits the act. Attributing any single terrorist incident to a Court ruling about procedural rights of detainees (should they happen to be caught and kept at Guantanamo) seemed extreme, at best.
When I read Justice Scalia’s full dicussion, I understood better what he was trying to say, though I still think his language was most unfortunate. He points out that several detainees have been released and then turned to violence as part of Islamic terror groups. (Over 500 detainees have been released, and he cites evidence of four who turned to violence post-release.) And, he points out, these are people who were released by the military, which underscores just how difficult it is to tell who should be detained or released.
That’s a fair point (when explained and not reduced to a sound bite), but still misses the point, though less disturbingly. The military released those people because there was insufficient evidence to detain them, not because the military failed to predict their prediliction for violence in the future. Who can predict future behavior? Moreover, I find the Justice’s theory of causation unpersuasive. He says the post-result violence was the result of the detainees’ release; maybe it was because of their detention. Perhaps those individuals were radicalized and turned to violence by their experience of being detained without sufficient cause at Guantanamo for years. But for that experience, they may never have been violent. Does that mean that once we detain a person we must continue to detain them indefinitely — regardless of whether the detention was justified — lest they turn violent post-release? That would not be a system of justice.
Much to think about here.