*Cross-posted
from Balkinization
If
the Bush administration were honest, the government’s brief to the Supreme
Court in the Guantanamo detainee
cases (Boumediene v. Bush and Al Odah v. United States, to be
argued Wednesday) would have said something like this. We admit that for the
last six years, we have behaved badly. Very badly. We mistakenly denied
hundreds of prisoners any protections under the Geneva Conventions. We then
deliberately brought them to Guantanamo
to evade judicial review. We engaged in highly coercive interrogations that
often approached, and in some instances constituted, torture. After you
rejected our position 3 ½ years ago in Rasul v. Bush, we ignored the
message. Rather than providing the detainees fair hearings, we set up sham
military proceedings, stonewalled district judges, and waited for Congress to
bail us out. We don’t deserve to stand here today and argue against habeas
corpus rights for these prisoners.
But honesty has never been this administration’s strong suit.
Instead, the administration has the hubris to defend the habeas-stripping
provisions of the Detainee Treatment and Military Commissions Acts by extolling
the virtues of a bright line rule limiting fundamental constitutional
protections to
U.S.
sovereign territory. That line, of course, conveniently excludes Guantanamo (as
well as Bagram Air Base in Afghanistan, secret CIA-run prisons (or “black
sites”), and other places that the United States continues to imprison people
without due process in the name of its “war on terror”). Sovereignty, the
government
argues, provides an “easily administrable” test. In other words, it lets
the Executive branch know in advance where it can detain and interrogate
without judicial review on the one hand, and gives judges an excuse to turn a
blind eye on the other.
The
Supreme Court is likely to reject this argument.
Rasul’s holding may
have been statutory, but both Justice Steven’s opinion for the Court and
Justice Kennedy’s concurring opinion strongly support the existence of a
constitutional entitlement to habeas corpus and due process for prisoners at
Guantanamo.
The Court noted several reasons why a different constitutional analysis was
required at
Guantanamo than in
Johnson
v. Eisentrager.
It also made clear that formal constructs like
sovereignty did not determine the territorial ambit of the common law writ
(which Suspension Clause protects), a point we reiterate in this legal
historian’s
amicus
brief and Paul Halliday and G.
Edward White make in this
important
article. In addition, the Court appeared in
Rasul’s footnote 15 to
endorse the Justice Harlan’s “impracticable and anomalous” test for determining
the application constitutional rights abroad. (And no place could it be less
“impracticable” or “anomalous” to extend basic safeguards against unlawful
detention than a
U.S. enclave
like
Guantanamo
where, as Justice Souter pointed out in
Rasul, even the iguanas are
protected). Justice Kennedy similarly emphasized the degree of U.S. control
over Guantanamo and the Guantanamo detainees’ indefinite confinement without
lawful process in distinguishing
Eisentrager and suggesting a
constitutional entitlement to habeas corpus So, the real question in
Boumediene/Al
Odah is not whether the Court will find that Guantanamo detainees’ are
protected by the Constitution but how it will reach that conclusion.
