Students and scholars will study these decisions for years to come. Within months, a trickle of law review articles will begin to appear; in time, the trickle will likely increase to a flood. These articles will parse the decisions with meticulous care, debating every aspect of the various decisions – whether they vindicate the rule of law or dangerously limit the President's war power; what they resolve, what they leave for another day; whether they were litigated well or poorly. I suppose I will join in this debate. For now, however, I would close this essay with the penultimate sentence of the majority opinion in Rasul:
What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.
As the Court well knew when it “answer[ed] this question in the affirmative,” much more was at stake in this case. By its decision, the Court reaffirmed – for all time, one fervently hopes – that at least so long as we would call ourselves a democracy, we can never tolerate a prison beyond the law.
1. I am frequently asked how we could represent clients who have been held incommunicado. Federal law allows a petitioner to seek habeas relief through a “next friend.” The next friend, who is usually a relative or other person with a close relationship to the inmate, can maintain an action when the inmate is incompetent or unable to act on his own behalf. In our case, the detainees obviously could not file the litigation themselves, nor could they seek counsel. They were, however, occasionally allowed to write censored letters to their families, which were delivered by the International Red Cross. When the families heard from their loved ones, they contacted lawyers overseas, who eventually got in touch with us. By this device, though I have represented my clients since February 2002, I have never met them.
1. See, e.g., Jess Bravin, “The Fight For Iraq: Army Report Omitted Prison Details,” Wall Street Journal, June 4, 2004, p. A6. The Journal quotes a report prepared by Lt. Col. Robert Chamberlain, intelligence chief for the Army's Joint Readiness Training Center, who found that prisons in Iraq were severely overcrowded, but that approximately 80% of the prisoners were innocent. According to Col. Chamberlain, “It's like the Roach Motel, 'they can check in but they never check out!'” Col. Chamberlain's assessment was omitted from the portion of the report originally made public by the Department of Defense. See also Maj. Gen. Antonio M. Taguba (Coalition Forces Land Component Command), Article 15—6 Investigation of the 800 Military Police Brigade, March 9, 2004 (http://news.findlaw.com/hdocs/docs/iraq/tagubarpt.html).
2. The domestic experience after September 11 should likewise give us pause. In June 2003 the Inspector General of the Justice Department issued a report on the post-September 11 detentions of foreign nationals in this country. Between September 11 and August 2002, the administration detained 738 foreign nationals in connection with ongoing investigations into the terrorist attacks. None of these people were charged with an offense related to September 11, and the overwhelming majority were cleared of any connection to terrorism. U.S Department of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held On Immigration Charges In Connection with the Investigation of the September 11 Attacks, April, 2003) (released June 2, 2003); see also David Cole, Enemy Aliens (New York: New Press, 2003).
1. See, e.g., Final Report, Japanese Evacuation From The West Coast (1942), p. 34: “The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.” The report was prepared by Lt. Gen. J. L. DeWitt, the military official in charge of the relocations.
2. See Report of the Association of the Bar of the City of New York, Human Rights Standards Applicable To The United States' Interrogation of Detainees, June 4, 2004, p. 12, n. 22: “[S]enior JAG officers [report] that the prior practice of having JAG officers monitor interrogations in the field for compliance with law and regulations had been curtailed at the direction of senior officials.”
1. Neil Lewis and Eric Schmitt, “Lawyers Decided Bans on Torture Didn't Bind Bush,” New York Times, June 8, 2004, p. A1; James Risen, David Johnston, and Neil A. Lewis, “The Struggle For Iraq: Detainees; Harsh CIA Methods Cited In Top Qaeda Interrogations,” New York Times, May 13, 2004, online; Tim Golden and Don Van Natta, Jr., “U.S. Said to Overstate Value of Guantánamo Detainees,” New York Times, June 21, 2004, p. A1; New York Times, A Guide To The Memos On Torture (available at www.nytimes.com/ref/international/24MEMO-GUIDE.html as of June 2005).
2. See Arnold Krammer, Nazi Prisoners of War in America (New York: Stein & Day, 1979).
1. See Golden and Van Natta, loc. cit.: a former Secretary of the Army was told “by a senior military official at the base that only a third to a half of the detainees appeared to be of some value …. “Other programs of wartime imprisonment are likewise distinguishable from the imprisonments at Guantánamo. During the Civil War, for instance, Lincoln unilaterally suspended the writ of habeas corpus and the Union Army seized and detained thousands of citizens without process. See, e.g., Mark Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties (Oxford: Oxford University Press, 1991); William Rehnquist, All The Laws But One: Civil Liberties in Wartime (New York: Vintage 1998). Scholars continue to debate whether Lincoln's actions were lawful, but setting the constitutional issues to one side for the moment, it remains the case that most of these prisoners were detained for relatively short periods and released. In addition, the prisoners were not held incommunicado; they were allowed to interact both with other prisoners, and with their families. And finally, Congress substantially circumscribed the effect of Lincoln's suspension with the Habeas Corpus Act of 1863, which prevented indefinite detentions without legal process. Ex Parte Milligan, 4 Wall. 2, 132–33 (1866) (Taney, C.J., concurring); Rehnquist, op. cit.,pp. 129–131; Neely, op. cit., pp. 202–3. Even the discredited Japanese internments offer no precedent for the Guantánamo detentions; on the same day the Supreme Court approved the detentions, they also held that detainees who could establish their loyalty were entitled to their release. Korematsu v. United States, 323 U.S. 214 (1944); Ex Parte Endo, 323 U.S. 283 (1944).
2. The Secretary of the Army recently suggested the war on terrorism “is a little bit like having cancer. You may get it in remission, but it's never going to go away in our lifetime” (“Army Chief Likens Terror Threat To Cancer,” Associated Press, June 15, 2004, online).
1. Peter Irons, Justice At War (Oxford: Oxford University Press, 1983). For the court decisions, see Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) (vacating conviction); Hirabayashi v. United States, 828 F.2d 591 (9 Cir. 1987) (vacating conviction for violating curfew); Hirabayashi v. United States, 627 F. Supp. 1445 (W.D. Wash. 1986) (vacating conviction for violating exclusion order). More recently, Jane and Harry Scheiber have performed much the same service with their painstaking and eminently readable account of martial law in Hawaii during the Second World War — a five-year period of unprecedented restriction on the civil liberties of citizens and foreign nationals alike, restrictions that the military insisted to the end were critical to our success in the Pacific. Harry N. Scheiber and Jane L. Scheiber, “Bayonets in Paradise: A Half-Century Retrospect on Martial Law in Hawaii, 1941—1946,” University of Hawaii Law Review, Vol. 19, No. 1, Fall, 1997.
2. The cover sheet of one recently leaked memorandum, which argued that President Bush was not bound by the legal prohibitions on torture, indicated the document was to remain classified for ten years. See also Golden and Van Natta, loc. cit.
1. Jacobus TenBroek, Edward N. Barnhart, Floyd W. Matson, Japanese American Evacuation and Resettlement: Prejudice, War and the Constitution (Berkeley, University of California Press, 1958), p. 83 (quoting Monterey Press Herald, January 30, 1942). For a discussion of the same quote, see G. Edward White, Earl Warren: A Public Life (New York: Oxord University Press, 1982), p. 69 (quoting Associated Press news re
lease, January 30, 1942).
2. TenBroek et al., op. cit., p. 84 (quoting Hearings, 77 Congress, 2nd sess., House Select Committee Investigating National Defense Migration (Washington: G.P.O., 1942)).
3. Earl Warren, The Memoirs of Earl Warren (New York: Doubleday 1977), p. 149.
4. White, op. cit., p. 77.
1. Spatial disorientation (SD) is a well-recognized phenomenon. Among others, the United States Air Force Research Lab maintains an elaborate website dedicated to providing information about SD. See http://www.spatiald.wpafb.af.mil/index.aspx. Michael Baker, technical editor of Flying Safety, authored a useful primer available at this site which dispels certain common myths about SD: “Contrary to some popularly held notions, it isn't just the operator of high-performance aircraft, or the inexperienced flier, who is susceptible to the deadly effects of SD. SD is a phenomenon that transcends aircraft flight characteristics (high-performance or not), experience levels, affiliation (military or civil aviation), and aircraft type (large or small aircraft, fixed-or rotary-wing) …. In one of the most common — and dangerous — varieties of SD, the pilot doesn't know that he doesn't know which way is up. It is said there are two types of pilots: those who have experienced SD and those who don't know they've experienced SD.” Michael Baker, “A Primer on Spatial Disorientation” (http://www.spatiald.wpafb.af.mil/There_Was.aspx?NID=1). The National Traffic Safety Board concluded the “probable cause” of Kennedy's fatal accident was “[t]he pilot's failure to maintain control of the airplane during a descent over water at night, which was a result of spatial disorientation” (http://www.ntsb.gov/pressrel/2000/000706.htm).
1. As with all things Lincoln, a number of scholars have pondered the lawfulness of his various wartime actions. See, e.g., Rehnquist, op. cit.; Daniel Farber, Lincoln's Constitution (Chicago: University of Chicago Press, 2003); J. G. Randall, Constitutional Problems Under Lincoln, rev. ed. (Urbana: University of Illinois, 1951, originally published 1926). For a discussion of the Espionage and Sedition Act prosecutions during and immediately after World War I, see Zachariah Chafee, Free Speech in the United States (Clark, N. J.: Lawbook Exchange 2001, originally published Cambridge: Harvard University Press, 1941). A good primer on the Palmer Raids and the hysteria of the Red Scare can be found in Robert K. Murray, Red Scare: A Study in National Hysteria: 1919–1920 (Minneapolis: University of Minnesota Press, 1955). The literature on the Japanese internments is simply voluminous. Some of the most important work is TenBroek et al., op. cit.; Irons, op. cit.; Eugene Rostow, “The Japanese American Cases – A Disaster,” Yale Law Journal, Vol. 54, 1945, p. 489. The literature on McCarthy and the House Un-American Activities Committee (HUAC) is similarly rich, but one author that discusses them in the context of the present conflict is David Cole (op. cit.). For a chilling account of four decades of domestic surveillance, see Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94–755, 94 Congress, 2nd Session (1976) (the “Church Committee”).
1. Yoo and Delahunty are no longer with the administration; Yoo has returned to his position on the faculty of Berkeley Law School and Delahunty has joined the faculty of the University of St. Thomas Law School, in St. Paul, Minnesota. As of this writing, Philbin remains with the Department of Justice.
2. As we now know, these memos were the intellectual foundation for several subsequent memos that purported, among other things, to release the President and officers acting at his direction from domestic and international prohibitions against the use of torture.
1. Leland H. Jenks, Our Cuban Colony (New York: Vanguard Press, 1928), pp. 77—79. The President signed the Platt Amendment March 2, 1901, and it was presented to the Cuban Government the following day: “Their relations to the United States had been settled forever. They had only to vote the articles into their constitution. Until they did so, Cuba was clearly to be regarded as unpacified. The American Army of occupation would remain. The Cubans were entirely free to agree or disagree. They were entirely free to secure such independence as was possible under the Platt Amendment or to continue under the military administration. After several vain attempts to find a more palatable alternative, they added the provisions, word for word, as an 'appendix' to their constitution, June 12, 1901” (ibid., pp. 77–78.)
1. Ibid., pp. 80–82.
2. Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, February 23, 1903, Art. III, T.S. No. 418 (Agreement).
3. First quote see 25 Op. Att'y Gen. 157 (1904); Olson quote see 6 Op. O.L.C. 236, 242 (1982) (opinion of Asst. Attorney General Olson).
4. See, e.g., Kirchdorfer, Inc. v. United States, 6 F.3d 1573, 1583 (Fed. Cir. 1993) (finding violation of Takings Clause by Navy at Guantánamo); Burtt v. Schick, 23 M.J. 140 (U.S.C.M.A. 1986) (granting writ of habeas corpus and holding that impending court-martial proceeding on Guantánamo would constitute double jeopardy, in violation of 10 U.S.C. § 844(a)).
1. See, e.g., United States v. Lee, 906 F. 2d 117 (4 Cir. 1990).
2. Bird v. United States, 923 F. Supp. 338, 341 n.6 (D. Conn. 1996); Anita Snow, “Cuba Attacks Guantánamo Use for Prisoners,” Washington Post, December 27, 2003, p. 14.
1. The relevant provision of the Convention can be found at Geneva Convention III, Art. 5, 6 U.S.T. §3324, 75 U.N.T.S. §142; the military regulation is codified at Enemy Prisoners of War, Detained Personnel, Civilian Internees, and Other Detainees, U.S. Army Regulation 190–8 (applicable to the Departments of the Army, Navy, the Air Force, and the Marine Corps), October 1, 1997. For a discussion of the history and current use of these provisions, see Frederic L. Borch, Judge Advocates in Combat (Washington, D.C.: U.S. Army Center of Military History, 2001); Howard S. Levie, Prisoners of War (Newport, R.I.: Naval War College Press, 1978).
1. First quote: Sterling v. Constantin, 287 U.S. 378, 401 (1932); second quote: Duncan v. Kahanamoku, 327 U.S. 304, 336 (1946) (Stone, C. J., concurring).
1. Chafee, op. cit., p. 108, note 3 (referring to contemporary attempts to defend the now-discredited Supreme Court decision in Abrams v. United States, 250 U.S. 616 (1919)). And of course, it is worth recalling that, at least with respect to the jurisdictional argument, the view of Guantánamo expressed by Yoo and Philbin had prevailed in the lower courts.
1. Rasul v. Bush, No. 03—334, Petition for Writ of Certiorari, p. 13.
2. Albert Camus, The Plague (New York: Modern Library, 1948), p. 66
3. There were important differences between the cases. Relying on Johnson v. Eisentrager, the administration in Rasul claimed the prisoners were entirely beyond the jurisdiction of the federal courts. In Padilla and Hamdi, the administration agreed the federal courts had jurisdiction over the cases, but argued that the administration's explanation of why the two were being held — offered in the form of hearsay affidavits from an official with the Department of Defense — proved conclusively that the detentions were lawful. The prisoners could not contest the allegations made in these affidavits, and the court had to accept them as true. Jennifer Martinez, one of Padilla's lawyers, discusses his case in “Jose Padilla and the War on Rights,” Virginia Quarterly Review, Volume 80, Number 4, Fall, 2004, online.
1. In a 5–4 decision, the Court in Padilla held that the case should have been filed in South Carolina instead of New York. But the decision in Hamdi leaves no doubt that Padilla will be entitled to relief once he files in the proper venue.
THE EDITORS' GLOSS: Joseph Margulies was kind enough to pen the following few words of introduction to the excerpt we've included from Amnesty International's report on Guantánamo Bay.
The following summary of recent developments in the Guantánamo litigation accurately summarizes the state of play since the Supreme Court decision in Rasul. As I write, we are heading toward a second round of appellate litigation in the D.C. Circuit, and may be back in the Supreme Court before long. Over 500 prisoners continue to languish at the base – nearly the same number as before Rasul �
� and thousands more at similar prisons around the world. Unfortunately, AI's thoughtful and trenchant critique was overshadowed by the controversy that erupted from their description of Guantánamo as a “gulag.” While I disagree with that characterization, and would not have described the base in that way, the tyranny of labels should not distract us from a serious discussion of this matter. The staff at AI, along with other talented researchers at organizations such as Human Rights First, have written excellent accounts of virtually every aspect of the Bush administration's failed detention policy, and it would be a terrible shame if we dismiss their reports simply because we take issue with some of their language.
More importantly, the lesson seems at last to be getting through. Thomas Friedman recently called for President Bush to shut Guantánamo down (New York Times, May 27, 2005). Senator Biden (D-Del.) echoed the call days later (“Biden Urges U.S. to Take Steps to Close Prison at Guantánamo,” Associated Press, June 6, 2005). Two days after that, former President Carter made the same plea (“Carter: Close down Guantánamo,” Associated Press, June 7, 2005). The next day, President Bush acknowledged that his administration was “exploring all alternatives” to the base (“U.S. Wants Gitmo Prisoners Held at Home,” Associated Press, June 9, 2005).
We shall see. Events may yet confirm the judgment of Dr. King, who reminded us that “the arc of the moral universe is long, but it bends towards justice.” Meanwhile, my own take – essentially as I presented it to the Senate Judiciary Committee – on the Combatant Status Review Tribunal, created in response to Rasul, follows the AI selection.
Joseph Margulies
Chicago, Illinois
June 9, 2005
CHAPTER
29
postscript
Seeking to Render Rasul Meaningless
Neo-Conned! Again Page 64
