The upshot of this logic is that, so far as I am aware, Rasul is the only case in United States history in which litigants have been deliberately kept unaware that their fate is being decided by the United States Supreme Court.1
Ironically, the problem with this argument is that it proves too much and too little. It proves too little because it assumes the critical fact in contention – viz., that the person being interrogated belongs in prison. The argument assumes that – operating in an unconventional conflict, where forces are not arrayed in traditional battlefields, where the enemy may be indistinguishable in appearance from any disengaged civilian, where the United States claims it may find its foe anywhere in the world, and where (by hypothesis) the military suffers from a lack of reliable intelligence on the ground – the administration has made the right decision to detain this person in the first place. In reflecting on the relative value of this assumption, we are well to recall the military's own estimate that perhaps 80% of the people imprisoned during the insurgency in Iraq are innocent.1 And in Iraq, all the inmates were seized in a single country during a relatively brief period. The prison at Guantánamo, by contrast, houses inmates seized from across the globe, over a period of years.2
In any case, armed with this questionable assumption, the military takes the prisoner's refusal to disclose intelligence information as evidence of his rigorous and disciplined training, and not as evidence that he has no information to disclose. The only solution, therefore, is to conduct both more and better interrogations. In that respect, the reasoning is reminiscent of the logic pressed to support the Japanese internments during World War II: the fact that there had been no fifth column activity or acts of sabotage prior to the internments merely confirmed that such activity had been planned for a later date. In all events, the supporters of internment never took the absence of any untoward activity as evidence that they were mistaken about the risk in the first place.1
Yet the administration's argument also proves too much. Even if we assume the various premises are correct – that the military has seized the right person, and that extended isolation and complete dependence is the sine qua non of a successful interrogation – the government's argument posits an interrogation that never ends, since the moment the interrogation ends, so does the justification for the strict isolation. For many of the Guantánamo prisoners, the isolation has now gone on for over two years, with no apparent end in sight. Perhaps as importantly, the argument stakes its claim on the singular importance of intelligence gathering. If that is indeed the test, then conditions which increase the likelihood of what the administration defines as a “successful” interrogation will be viewed sympathetically, while conditions that diminish the likelihood will be viewed with skepticism. This argument, however, leads seamlessly – albeit not inevitably – to the sickening abuses recently uncovered at Abu Ghraib and other military facilities.
A few examples may bring this problem into sharper focus. In the first Gulf War, military lawyers were present at every detention center. These attorneys were carefully trained in the laws governing the proper treatment of detainees, and were allowed to monitor any interrogation from behind a one-way mirror. They were also authorized to intervene if any interrogation crossed the line. By design, however, their monitoring was surreptitious, and neither the interrogator nor the detainee knew whether any particular session would be monitored. In the present conflict, however, the administration has curtailed this practice, apparently because it believed lawyers might interfere with aggressive interrogations.2
But even while the administration removed JAG lawyers, whose presence acted as a potential brake on overzealous interrogators, it endorsed an extremely controversial approach to interrogations at Guantánamo. In September 2002 when the administration had grown impatient with the lack of intelligence coming from Guantánamo, it authorized interrogators to become more aggressive. According to press accounts, at least one prisoner was held under water until he believed he would drown. And in March 2003 a team of administration lawyers concluded the President could authorize the military to torture detainees with impunity, and that the domestic and international laws prohibiting torture were subject to a type of crude cost-benefit analysis, and could be discarded if it was discovered they interfered with what the administration believed was an effective interrogation technique.1
Another issue worth further exploration is the unprecedented nature of the detentions. Again, so far as I am aware, the detentions at Guantánamo mark the first time in United States history that the military has relied on a systematic program of indefinite detention without legal process. Defenders of the current detentions point out that the United States has detained people in every prior conflict, and that is of course correct; during the Second World War, the U.S. military detained over four hundred thousand German and Italian prisoners in the United States. But these prisoners enjoyed the protections of an extant legal system – the 1929 Geneva Conventions – which the United States observed to the letter.2As importantly, and unlike the present conflict, the nature of the hostilities during the Second World War substantially minimized the risk that the military would capture an innocent civilian. The military could fairly assume, in other words, that the soldier across the field in the slate gray uniform was in fact a member of a belligerent force who could be lawfully held for the duration of the conflict, without the need for further process. But administration officials acknowledge that no such confidence surrounds the present conflict.1
Defenders of Guantánamo also maintain that wartime detentions are inherently indefinite, if only because one can never predict when a particular conflict will end. This too is undeniably true, but in prior conflicts, the event which marked the end of a particular campaign could be readily ascertained, which made it a relatively simple matter to recognize when a wartime restriction crossed the line from reasonable to abusive. Furthermore, since a nation's defeat marked the end of its ability to maintain an army, it also became reasonably clear when the military should repatriate prisoners. But the war on terrorism pits us against an ideology. How do we know when we have vanquished an idea? What marks the moment when armies doing battle with deeply held convictions may finally set down their arms, secure in the knowledge that the conflict has run its course? I venture the end of such a conflict will not be marked by an armistice signed on the deck of the Missouri. But if this reality makes it difficult to know when the conflict is over, and if it means, as the administration has suggested, that the measure of this conflict will be in decades, and not years, doesn't it also make it more important that people who have been seized by mistake be provided some means by which they may establish their innocence and secure their release?2
There is also the nagging suspicion that much of our current musings about Guantánamo amount to little more than the first draft of history – that despite recent disclosures, almost everything worth knowing about the detentions will not be known for many years. At least, that seems to be one of the important lessons of recent scholarship. We learned only in 1983, when Peter Irons published Justice At War, that many of the justifications given by the military for the Japanese internments had in fact been untrue. His important work led ultimately to the judicial decisions vacating the convictions of Fred Korematsu and Gordon Hirabayashi.1 Likewise, when the military first began transporting prisoners to Guantánamo, Vice President Cheney described them as “the worst of a very bad lot,” a characterization echoed by others in the administration. Yet as of this writing, over one hundred have been released, none has been tried, and in recent published reports, senior administration officials have admitted that the administration greatly overstated the intelligence value of the Guantánamo detainees. Privately, administration officials acknowledge that a substantial number of the prisoners are likely innocent, an acknowledgment they have made publicly about the prisoners in Iraq. I suspect we will one day know considerably more about the detentions at Guantánamo than we do today.2
Finally, there is the opportunity for engaging speculation – but little more than speculation at this early stage – about whether, in the sober light of day, the architects of the post-9/11 detentions will come to regret their role. This is obviously related to the preceding question, since regret may accompany full disclosure. In any case, there is ample precedent for such ex post contrition, the most prominent example of which emerges from the debacle of the Japanese internments. Within weeks of Pearl Harbor, the Republican Attorney General of California became an enthusiastic and vocal supporter of internment. In January 1942, he warned ominously that the large number of Japanese Americans living on the West Coast “may be the Achilles Heel of the entire civilian defense effort. Unless something is done it may bring about a repetition of Pearl Harbor.”1
Days later, the Attorney General was among the first to suggest the argument mentioned above – that the very absence of sabotage by Japanese Americans proved that sabotage was imminent: “It seems to me that it is quite significant that in this great state of ours we have had no fifth column activities and no sabotage reported. It looks very much to me as though it is a studied effort not to have any until the zero hour arrives.”2Over the next several months, he proposed a veritable laundry list of anti-Japanese clichés to support internment. It was only many years later that Earl Warren, whose eventual tenure as Chief Justice became synonymous with an activist, liberal Supreme Court, would admit his error.
“I have since deeply regretted the removal order and my own testimony advocating it,” Warren wrote in his memoirs. “It was wrong to react so impulsively without positive evidence of disloyalty, even though we felt we had a good motive in the security of our state. It demonstrates the cruelty of war when fear, get-tough military psychology, propaganda, and racial antagonism combine with one's responsibility for public security to produce such acts.”3 In an interview shortly before his death, Warren was moved to tears as he recalled the faces of the children separated from their parents during the relocations.4 For now, one can only wonder whether the leading actors in today's tragedy, some of whom presumably look with disgust on the pictures of tortured and humiliated detainees, will likewise come to regret their role in creating the prison at Guantánamo Bay.
All of these are important topics, and I hope one day to have the opportunity to give them the careful attention they deserve. But as pressing as these questions may be, I would suggest they are merely the consequences of an earlier decision. The more important task, and my interest in this essay, is to consider causes rather than effects, and to reflect on the determination by the United States to create a prison beyond the law.
Ruminations on the Fear of Flying
Let me introduce the topic this way: flying can be extremely dangerous. During certain maneuvers, pilots may become so disoriented that they cannot trust their senses. Every instinct in their body will tell them that their life depends on taking a certain action. But tragically, their instincts during these periods cannot be trusted, and what they believe to be the only safe option may be precisely what kills them. By some estimates, this phenomenon, called spatial disorientation or SD, accounts for ten percent of all general aviation accidents, and ninety percent of the accidents attributable to SD are fatal. It is the most likely explanation for the crash that killed John F. Kennedy, Jr. In these moments, pilots must learn to disregard their instincts and to trust their instruments instead.1
As I reflect on the tension between civil liberty and national security, and on the particular example of this tension in the present conflict, I have found spatial disorientation a useful metaphor. It suggests the essence of the hysteria that periodically grips the nation, without casting it in pejoratives. As Chief Justice Warren's experience demonstrates, it is the sad fact that honorable, well-intended public servants, who in normal circumstances are steadfast in their commitment to the Constitution and the rule of law, nonetheless find themselves capable of simply reprehensible conduct during times of crisis.
Every significant military conflict has had its singular example: during the Civil War, Lincoln suspended the writ of habeas corpus nationwide and resorted to military trials for civilians. During the First World War, thousands of people were tried, convicted, and sentenced to lengthy terms of imprisonment for the crime of speaking against the war, even when their supposedly seditious remarks had no remote capacity to affect the war effort. After the war, the Palmer Raids became synonymous with government hysteria. The Japanese internments represent one of the darkest chapters in our nation's history. The excesses of McCarthyism are still fresh, and the abuses uncovered by the Church Committee are a matter of recent history. A number of scholars have elaborated on this phenomenon, and the ground is by now well traveled.1 On these occasions, otherwise thoughtful officials lost their moral compass, and held to their misguided judgments to the bitter end.
In the calm light of day, we look back at these periods with a deep and abiding regret, and berate ourselves in public displays of contrition. In the main, however, I believe we do a disservice when we cast these episodes in moralistic terms, as though the actors, faced with a clear choice between good and evil, calmly chose the latter. With notable exceptions, I no more believe this captures reality than the suggestion that a pilot who suffers from spatial disorientation chooses to crash. Political actors trapped in a tightening spiral of wartime hysteria simply cannot trust their instincts. They make their choices not because they fail to appreciate what they are doing, but because they believe they are doing precisely what must be done to preserve the nation. And typically they cling to their choices with a confidence that may be mistaken as arrogance – even when they are terribly mistaken.
But the fact that actors may not have made a moral choice does not mean that circumstances present no moral obligations. Every pilot owes an obligation to himself and his passengers to be familiar with the phenomenon of spatial disorientation, and must learn to recognize the conditions most apt to produce it. And he must agree to abide by certain rules, including the obligation to maintain his instruments in good working order, and to trust them throughout his flight, even when his senses tell him to do otherwise. In short, while the pilot who misapprehends reality may be relieved of his moral obligation to make rational choices, he can certainly be faulted if he deliberately fails to prepare for the day when his judgment may become impaired. And we would be deeply dismayed if a pilot were to disable his instruments precisely when he is most likely to become disoriented. In short, and if I may be allowed to mix my metaphors, we do not blame Ulysses for his madness at the Sirens' call, but we would certainly have taken a dim view of his actions had he not ordered his men to tie him to the mast.
The Creation of a Prison Beyond the Law
With this metaphor in mind, consider the administration's rather unusual specifications: on the one hand, they believed they needed a secure facility where prisoners could be held in isolation from any outside influence, perhaps for decades to come. On the other hand, the inmates had to be readily accessible to the intelligence officials involved in the global campaign against al-Qaeda, which could at various times include the FBI, the CIA, the National Security Agency, and military intelligence. Ideally, the prison would not be in one of the fifty states, since doing so would place it within the potential supervision of a federal court. At the same time, however, it would be best if the prison were not within any foreign country, so the administration could plausibly argue that events at the prison did not fall within the jurisdiction of any foreign or international court. Isolated, but accessible; controlled by the United States, but beyond the reach of her courts; part of the United States, but not in the United States.
In the days after September 11, administration attorneys set to work devising a legal response to these unusual demands. In a remarkable development, we learned of their handiwork when two memos were leaked to the press and disclosed to the public. The first memo, written by Deputy Assistant Attorney Generals Patrick Philbin and
John Yoo, and dated December 28, 2001, addressed “whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the U.S. naval base at Guantánamo Bay, Cuba.” The second memo, written by Yoo and Special Counsel Robert Delahunty and dated two weeks after the first, discussed whether prisoners captured in connection with the war in Afghanistan were protected by the laws of armed conflict, including the Geneva Convention.1
Taken together, these memos set out a veritable blueprint for the creation of a prison beyond the law. Both of them deserve careful scrutiny, as do the several memos that followed in their wake; for our purposes, however, the jurisdiction memo is the most important.2 As an initial matter, it is apparent from the jurisdiction memo that the 'preferred' result – that is, the outcome viewed as most desirable by the administration – was a conclusion that the detainees were beyond the jurisdiction of a federal court. Indeed, the memo explicitly cautions that a contrary result could “interfere with … the system that has been developed” by the administration by allowing a federal court to review, among other things, “whether and what international law norms may or may not apply to the conduct of the war in Afghanistan.” In other words, from the earliest days of the war on terror, the administration wanted to place these prisoners, and the lawfulness of Executive conduct, beyond the reach of a civil court.
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