Except in this case Scalia brandished a working definition. He laid it out as “the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. The Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.” He did not stop there but went on to conclude in a way similar to long-standing opponents of civil rights legislation that this was a turn against the way the American people chose to evolve and that the Court showed it was “impatient of democratic change.” This is important because even in the wake of gay marriage, and homosexuals voting for Trump, even world-famous gay stars are still being bashed and beaten, and many other world-famous people have been inching back to that time when they could still get away with being publicly homophobic.
The Court’s decision was more in line with a liberal version of where America could possibly go, but I wonder if Scalia’s remarks aren’t a more accurate capture of where America might still be now. We (meaning us liberals) like to think that progressive legislation eventually produces progressive change of thought, but the Trump years have loudly and violently proven this not to be the case. We also like to ignore that progressive triumphs nearly always come with violent right-wing backlash, scrambling to conclude that the Manson murders, for example, were senseless when they were simply racist. Manson wasn’t trying to end the sixties’ dream; he was trying to get black people framed for the murder so that it would start “Helter-Skelter,” a race war.
Racism and anti-Semitism came unhooded in 2017 despite decades of civil rights. Speaking of civil rights, the Supreme Court rolled back on protections the very same week it approved gay marriage. Roe v. Wade is constantly under siege, this time to wither it from the branches, not the root. Bakers are taking to the courts for the right to not bake cakes for same-sex weddings, funeral directors are refusing gay corpses, and for an administration that came in with the help of so many homo-millions, the rollback against protections of LGBQ and, in particular, trans people has been alarming.
I migrated to the United States in fall 2007. Some people flee to, some run from, some do both. I left Jamaica to save my life, but contrary to the connotation immediately raised by coupling “Jamaica” and “gay” in the same sentence, I was only fleeing myself—or, rather, a version of myself intent on killing me. This version of myself couldn’t imagine a place where I could hold another man’s hand for more than four seconds, could never even imagine admitting to being gay in the first place.
The previous sentence is not true. I imagined it all the time. I lived in the fantasy of it, delaying as long as I could the reality of it never happening. Other times I disconnected from it completely and imagined two other men living out wildly romantic lives, usually two handsome white men, as if my imagination had turned into a drama on the WB network. No gay person running to America fools himself into expecting a country decked out in rainbow colors or that you can’t be gay-bashed in New York City. But we run in the hope that we will not be excluded from life, liberty, and the pursuit of happiness because we flex queer. Note that those three words are all abstractions, and gay Jamaicans younger than me are far more interested in pursuing them in their own country. And lawmakers are constantly chafing against Lawrence v. Texas, playing with it, trying to corrupt it, and using it as a basis to claim that it restricts the very Fourteenth Amendment that made it possible. Scalia himself asserted that the same rationale that overturned Bowers v. Hardwick could be used to send women back in the closet with the coat hanger.
But what drew me to these United States was the idea that simply being myself was protected by law, even if at the time I didn’t know what that self was. This is a crucial thing for those of us who never had a chance to grow into ourselves in our home countries. We migrate to America to simply become. And while Lawrence v. Texas arrived far too late for far too many, for people like me, it came just in time.
RASUL V. BUSH (2004)
On January 14, 2004, the ACLU joined a coalition of sixteen legal, human rights, and religious organizations to submit an amici curiae brief in support of the petitioners in Rasul v. Bush. Shafiq Rasul, along with Asif Iqbal, David Hicks, and several other co-petitioners, was part of the first group of prisoners to be held and interrogated at the Guantánamo Bay detention camp. The question before the Supreme Court was whether Guantánamo detainees had the right to challenge their detention in federal court, or if the US government had the legal ability to hold them indefinitely, without explanation or oversight.
Habeas, Guantánamo, and the Forever War
WILLIAM FINNEGAN
Are we at war? The United States has committed troops to military conflicts in dozens of countries since World War II without a single declaration of war. Not in Korea, not in Vietnam, not in Iraq. The legal basis of these commitments has varied, but the scope of judicial authority has been consistently unclear and never more so than in the “forever war” that we’ve been fighting, erratically, semisecretly, since 2001.
After the September 11 terror attacks, the US government at the highest levels was determined to strike back and prevent further attacks. A joint resolution of Congress, passed within days, gave President George W. Bush the authority to use military force against those responsible for the attacks on New York and Washington, DC. This authorization was soon followed by the invasion of Afghanistan as the United States and its allies sought to destroy the al-Qaeda leadership, which included the planners of the 9/11 attacks, and their bellicose hosts, the Taliban regime. This authorization was also used to establish a military prison at Guantánamo Bay Naval Base, an American installation in Cuba, where the first group of prisoners arrived in January 2002.
Guantánamo was chosen carefully, according to John Yoo, then a lawyer in the White House Office of Legal Counsel and a key Bush official in the planning of the war on terror. It was isolated but accessible, and it was not technically on US territory. It might serve as an island outside the law. The administration quietly developed interrogation and detention policies and practices with little apparent regard for US law, human rights law, or the laws of war, including the Geneva Conventions. The United States wanted actionable intelligence, and by almost any means necessary. Prisoners were subjected to waterboarding and other abuses generally considered to be torture. Some disappeared into CIA-run “black sites”—secret prisons—scattered across the globe. Others were sent to jails in countries such as Egypt and Syria where they could expect to be tortured, and were. Because some detainees have never been officially acknowledged, it is impossible to know precisely how many have been held. Nearly eight hundred have passed through Guantánamo. The 2001 military authorization, which has been cited as the legal basis for operations across the globe, is still in force today, just as Guantánamo continues to house, if that is the right word, prisoners who have never been charged.
American attorneys, concerned about the status of Guantánamo detainees and convened primarily by the Center for Constitutional Rights, were initially unable to contact detainees. Instead, they had to find “next friends”—usually relatives, often parents—of the detainees to bring actions on the detainees’ behalf in US courts. One of the first actions to assert the rights of detainees, filed in district court in Washington, DC, in early 2002, was for two British nationals, Shafiq Rasul and Asif Iqbal, and an Australian, David Hicks. All three had been captured in Afghanistan. Indeed, all three had been sold to American special forces, who were paying a bounty, by a coalition of local militias known as the Northern Alliance.
Their complaint, filed by a consortium of American lawyers, challenged their detention, asserted a right to counsel, and sought to end their ongoing interrogation. None of them had been a member of a fighting force, they claimed, and they were thus incorrectly classified as “unlawful enemy combatants”—a poorly defined category, in any case, adopted by the Bush administration. They argued that the
ir detention violated, among other things, Fifth Amendment due process rights. The court had jurisdiction, they said, under the federal habeas corpus statute, which guarantees the right of a prisoner to challenge his or her detention. The government filed a motion to dismiss on the basis that the court lacked jurisdiction.
The district court agreed and dismissed the complaint, giving two main reasons. Johnson v. Eisentrager, a 1950 Supreme Court decision, had considered a petition from a group of German intelligence officers who were being held by the US military after having been captured in 1945 in China, where they were still assisting the Japanese puppet government in Nanking although Germany had surrendered. They had been convicted by a US military commission of violating the laws of war, then transferred to an American-run stockade in occupied Germany. The DC Circuit Court of Appeals had ruled in their favor, under the Fifth Amendment’s due process clause and the habeas statute. But the Supreme Court had reversed. Justice Robert Jackson, writing for the majority, found that because the petitioners were enemy aliens held outside the United States and already convicted of crimes committed abroad, they did not have the right to a habeas appeal. “Eisentrager controls the outcome in this case,” the government argued in Rasul v. Bush, and the district court agreed.
But to reach that conclusion, to answer the jurisdictional question, the district court found it had to determine the status of the naval base at Guantánamo. This was not war-torn Europe. Did the United States exercise territorial sovereignty? If so, that would indicate jurisdiction. In the lease agreement with Cuba, the United States can operate the base for as long as it chooses, but Cuba retains “ultimate sovereignty” over the territory. The detainees, like the Eisentrager petitioners, were therefore outside US territory, the court reasoned, and had no right to US judicial review. The DC Circuit Court of Appeals agreed. Eisentrager had barred the extraterritorial application of the Fifth Amendment’s protections to aliens, and that meant Guantánamo. Whether the aliens were enemies or not, the court lacked jurisdiction.
According to their attorneys’ brief to the Supreme Court (the Court had granted certiorari), submitted in early 2004, three of the petitioners, Shafiq Rasul, Asif Iqbal, and David Hicks, did “not even know they are the subjects of this litigation.” At that point, the three had been in Guantánamo for two years. Rasul and Iqbal later spoke at length about their experience in US custody. Their account is harrowing. First, they barely survived their time after being captured by the Northern Alliance militia. After the US military bought them, American soldiers kicked them, beat them, starved them, shackled them, hooded them, stripped them naked, threatened them with dogs, forced them to stay awake for days, forbade them to speak, forbade them to pray, held guns to their heads, forced them into stress positions past the point of permanent injury, locked them in cages in isolation, and interrogated them for months, until each of them confessed to practically anything they were accused of just to get the torment to stop. Is this you in a photograph at a meeting with Mohammed Atta? Whatever you say. Is this you at a rally with Osama bin Laden? Yes.
In oral argument before the Supreme Court, the solicitor general, Theodore Olson, began his remarks on behalf of the government by declaring, simply, “The United States is at war.” This seemed to be the central, definitional issue around which the arguments, the precedents, the soaring points about the rule of law, and the fine points of jurisdiction turned: If the United States was in fact at war, what sort of war was it? Where were its boundaries? Under what rules should it be conducted?
John J. Gibbons, a former federal judge from New Jersey, in oral argument for the petitioners, readily acknowledged that the United States was at war and that a habeas petition filed by a lawful combatant from “the battlefield” or any location near it should be dismissed out of hand. He praised the Eisentrager decision, even though Eisentrager provided the basis for much of the government’s argument in Rasul. Gibbons seemed to accept that war by its nature creates a zone in which the country’s political and military leadership must operate according to military necessity, untrammeled by the oversight of domestic courts. The Court’s concern, expressed in Eisentrager, about the war effort being drowned in “enemy litigiousness” if enemy aliens were granted access to federal courts was justified.
But this was Guantánamo. It was eight thousand miles from the Central Asian battlefield, barely a hundred miles from the US mainland. As a practical matter, the war effort would not be impeded by considering the claims of Guantánamo detainees. The United States had been exclusively in control of the enclave for a century. “Cuban law has never had any application inside that base. A stamp with Fidel Castro’s picture on it wouldn’t get a letter off the base.” Gibbons, a soft-spoken jurist who had served in the Navy during World War II, could offer these details with some confidence, having been assigned for a year to an ordnance facility at Guantánamo.
Several points distinguished the Rasul petitioners from the German nationals in Eisentrager, according to Gibbons and his colleagues. They were not citizens of an enemy nation, but rather of close allies. More important, the Eisentrager petitioners had been tried before a properly constituted US military commission in China, where some defendants had been acquitted and others convicted. They had therefore been accorded due process, their status as enemy war criminals established. They were filing habeas petitions, moreover, from a recently conquered corner of Germany, not from a quiet US base in the Caribbean where American law had long applied. The Court’s denial of their claim had been on constitutional, jurisdictional, and practical grounds; it did not want to compromise “wartime security” by interfering with the president’s authority as commander in chief.
These elements all differed fundamentally from the creation of an offshore prison where detainees could be held indefinitely with no due process—never charged, never tried. Thus, Eisentrager was not a guiding precedent. The habeas statute and the Fifth Amendment’s due process clause both assured the petitioners access to American courts. The Geneva Conventions, a binding treaty, also argued strongly for them. It was, again, a legal fiction to say that Guantánamo was not under US jurisdiction. Indeed, Justice Ruth Bader Ginsburg expressed impatience with what she called “the metaphysics of ultimate sovereignty.”
The Court took all these points and, in June 2004, it reversed the lower courts by a 6–3 majority. Justice John Paul Stevens, writing for the majority, reached back into British common law prior to American independence for examples of the historical reach of habeas corpus beyond national borders. Congress had made explicit in 1842 that federal habeas rights extended to foreign nationals, and the government had conceded in Rasul that an American citizen held at Guantánamo would have access to American courts. Justice Anthony Kennedy, writing in concurrence, distinguished the practical considerations in Eisentrager from those in Rasul—differentiating, in effect, between wars. Whereas in Eisentrager, “the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs,” the same could not be said of Rasul. Under the habeas statute, which requires only that a court have jurisdiction over a detainee’s custodians, the district court clearly had jurisdiction. The Court ordered the district court to consider the merits of the petitioners’ claims.
Justice Antonin Scalia, writing in dissent—he was joined by Chief Justice William Rehnquist and Justice Clarence Thomas—offered a sharply different view of the war on terror. The Rasul decision was “an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field.” The “present war” appeared, in Scalia’s argument, as existentially dangerous as World War II. This decision would, as the “more circumspect” 1950 Court had foreseen in Eisentrager, open our courts to millions of enemy prisoners “abroad.” Indeed, the Rasul majority had avoided even explaining “why Eisentrager was wrong” (emphasis in original). That was presumably because the Court did not consider Eisenstrager wrong. Scalia foresaw a future in which Guantánamo pr
isoners would be able to “forum shop” through all ninety-four federal judicial districts. “For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort.”
Rasul v. Bush was a major victory for habeas corpus, which, while being constantly renegotiated, remains a cornerstone of the rule of law. The Rasul ruling was statutory, however, not based on the Constitution, and relatively narrow. It ordered judicial review of detentions at Guantánamo regardless of a prisoner’s citizenship, but nothing specific beyond that. Congress, the Bush administration, and the lower courts all set to work to weaken, further narrow, or simply, in the case of Congress, cancel the outcome of Rasul with new legislation. The most notable short-term effect of Rasul was to open Guantánamo to lawyers to meet with their clients.
But the Supreme Court continued to rule in favor of habeas rights. In 2008, it rejected a military commission system established by the Defense Department as illegal under the Uniform Code of Military Justice and the 1949 Geneva Conventions. Then it found the congressional action to suspend habeas rights for Guantánamo detainees unconstitutional under the suspension clause, which states, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” This was the first time the Court had struck down a federal statute using the Suspension Clause, and it went some distance toward defining what kind of war the war on terror is—not, for a start, one that merited the suspension of habeas.
Habeas corpus has been suspended before, of course: by President Abraham Lincoln during the Civil War, without consulting Congress, citing dire military necessity in and around Baltimore (Congress authorized a national suspension two years later); by President Franklin D. Roosevelt, informally but effectively, and selectively, during World War II, citing a wholly imaginary threat to justify the internment of more than 100,000 ethnic Japanese, most of them US citizens. The lasting shame of that internment was invoked in Rasul by the filing of an amicus curiae brief under the name of Fred Korematsu, a Japanese American welder who fought his internment up to the Supreme Court, where he lost. (In 1998, Korematsu, vindicated by history, received the Presidential Medal of Freedom, the nation’s highest civilian award.)
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