The Guantanamo Cases

I listened to the oral arguments in the Guantanamo cases on C-SPAN today. As you may know, the issues are essentially (1) May the Supreme Court or lower federal civilian courts hear habeas corpus petitons brought by non-U.S. citizens detained on foreign soil (and, more specifically, detained at the Guantanamo Naval Base in Cuba); (2) Is Guantanamo sovereign U.S. territory or is it Cuban territory; and (3) do the Detainee Treatment Act and the Military Commission Act (passed by Congress and signed by the President), which allows Combatant Status review tribunals and review by the U.S. Court of Appeals for the D.C. Circuit) an adequate substitute for habeas corpus?

One must start with the Constitution, which says that the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it. Article I, Section 9.

One could argue that we were "invaded" on 9/11/01, so it was proper for Congress and/or the President to suspend habeas corpus.

The government, however, is saying that there /is/ no privilege of habeas corpus for persons captured overseas in a conflict, and courts have never recognized such a right. Justice Scalia asked Mr. Waxman to identify a case where a court (either American or English) has granted habeas corpus in such a case, and Mr. Waxman pointed to a case entitled the "Three Spanish Sailors." I do not know what that case says, so I presume that the Court, in some cases holds that foreigners detained overseas are entitled to habeas corpus.

This, of course, raises concerns that persons detained in Afghanistan or Iraq could file habeas corpus claims in U.S. courts. Mr. Waxman and his colleagues say that habeas corpus claims may be filed by persons detained on U.S. sovereign territory, and that Guantanamo is U.S. sovereign territory (of course, that's what they say /now/. I suppose the next step will be to file habeas claims on behalf of persons detained in Afghanistan or Iraq. This claim may already be decided, because five justices in Rasul v. Bush already said that Guantanamo is essentially U.S. territory.

Finally, the petititioners say that the CSRT/D.C. Circuit review process is an inadequate susbstitute for habeas corpus. The solicitor general did a good job saying that the procedures exceed those at common law, but Mr. Waxman did a good job at the end telling the story of a German detainee who was detained for terrorist associations and was not given the name of the person who he was alleged to have associated with.

I suspect that the four liberal justices plus Justice Kennedy will conclude that the CSRT/D.C Circuit procedures are adequate, but that they must afford detainees procedures such as the ability to see evidence against them; the right to an attorney; and full-scale review by the D.C. Circuit.

My problem with this approach is that it takes power away from the "political" branches (Congress and the President) and gives it to unelected judges that may or may not be able to react to changing conditions. Presumably, the court would conclude that the habeas right attaches when the detainee sets foot on U.S. sovereign territory. This will force the military to detain individuals who it does not want the possibility of release to detain individuals on soil that it does not control.

I could see a situation where a rapidly-changing war causes certain bases to be overrun by the enemy. For example, what if Cuba or Venezuela launch an attack on Guantanamo in an attempt to free the prisoners? And what if the courts order the U.S. to release the prisoners? Does the government just open the gate and let them into the Cuban countryside?

I also have a problem with transferring the detainees onto U.S. soil, as Hillary Clinton and others have suggested. Not only is there a problem of litigation, there is a possibility of escape onto U.S. soil. As in any other conflict, there is nothing wrong with holding enemy combatants until hostilities cease. To anyone who says "close Guantanamo," they should be required to say what they would do with the detainees.