A Nation of Laws

As reported in the Washington Post, it’s clear that the closing of the detention facility at Guantanamo Bay will be a priority for the Obama Administration. That will entail the resolution of a number of complex decisions, including a “thicket of legal, diplomatic, political and logistical challenges”, regarding the status of the 250 detainees currently in custody and the post-closure judicial repercussions. But closing Guantanamo Bay represents exactly the kind of change that Americans (and indeed the world) want and expect from President Obama. As he has often said, it is possible to “protect our nation and bring terrorists to justice, while also protecting our core values. “ Yes, in the end, how we proceed says much more about us than the terrorists we pursue. It is about American values and it is about American ideals. We need to close Guantanamo and we need to establish a just system for the future prosecution and detention of terrorist suspects. After all, we are a nation of laws. We need to start acting like it.

More from the Post:

Announcing the closure of the controversial detention facility would be among the most potent signals the incoming administration could send of its sharp break with the Bush era, according to the advisers, who spoke on the condition of anonymity because they are not authorized to speak for the president-elect. They believe the move would create a global wave of diplomatic and popular goodwill that could accelerate the transfer of some detainees to other countries.

But the advisers, as well as outside national security and legal experts, said the new administration will face a thicket of legal, diplomatic, political and logistical challenges to closing the prison and prosecuting the most serious offenders in the United States -- an effort that could take many months or longer. Among the thorniest issues will be how to build effective cases without using evidence obtained by torture, an issue that attorneys for the detainees will almost certainly seek to exploit.

Moreover, the new administration will face hard decisions regarding not just the current Guantanamo Bay detainees but also how it will handle future captures of terrorism suspects. It is unclear whether President-elect Barack Obama would consider holding some suspects without charge on national security grounds. His transition team denied reports this week that it was contemplating some form of preventive detention backed by a new civilian national security court. The idea has been a staple of legal debates over the future of Guantanamo Bay for the past year, but Obama advisers believe it would meet fierce congressional resistance.

"A great deal of attention has been focused on Guantanamo, as it should be, but Guantanamo is a symptom of a much larger question: Where and how is the U.S. going to detain and interrogate terrorist suspects it continues to pick up in combating al-Qaeda?" said Matthew Waxman, a former deputy assistant secretary of defense for detainee affairs and now a law professor at Columbia University…

During the campaign, Obama, while eschewing details, appeared to favor federal prosecution of terrorism suspects. "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in August, after the completion of the first trial at Guantanamo Bay, which resulted in a relatively mild sentence for Osama bin Laden's driver.

A campaign advisory group, which has now been disbanded, was sympathetic to a "try or release" system proposed by advocacy groups such as Human Rights First and studies by organizations such as the Center for Strategic and International Studies. Under this proposal, the new administration would shutter military commissions, review the files at Guantanamo Bay to send as many cases as possible to federal court for prosecution, and release the balance of detainees for prosecution or resettlement in their home country or other nations.

The new administration expects that European countries and Persian Gulf states that previously resisted accepting Guantanamo Bay prisoners will be more open to resettling some who are cleared for release or who cannot be sent home because of the risk of torture. Such cooperation is likely to follow a U.S. decision to settle some small group of detainees in the United States, possibly the Chinese Uighurs whom the government has said are not enemy combatants.

The incoming administration will also have to prepare military or federal prisons where it plans to hold those it intends to prosecute and must assuage state and local concerns about housing the detainees. The Obama administration is also likely to use its diplomatic leverage to seek guarantees that some transferred detainees will be closely monitored, commitments that the Bush administration has found wanting in the case of countries such as Yemen. Approximately 100 Yemeni prisoners remain at Guantanamo Bay.

Human rights advocates and some advisers expect the new administration to outlaw torture and enhanced interrogation techniques, detain people seized on the battlefield in Iraq and Afghanistan under the traditional laws of war, and insist on criminal prosecution against terrorism suspects seized elsewhere. In a report issued in May, Human Rights First noted that since the Sept. 11, 2001, attacks, there had been 107 successful prosecutions of international terrorism cases in the federal courts, compared with three convictions in military commissions at Guantanamo Bay, including one plea bargain.

"The federal criminal courts are capable of handling serious terrorist cases and capable of handling people and evidence seized overseas, without sacrificing the government's need to protect sensitive material, while protecting defendants' rights," said Deborah Colson, a senior associate at Human Rights First. And Waxman said that "criminal prosecution in federal court is a more potent counterterrorism tool today than it was in 2001," adding that "criminal statutes have been expanded to cover more types of terrorism crimes."

But some experts say the United States still needs some form of preventive detention, albeit one that includes robust defendant rights and ongoing judicial review. "We need a preventative detention regime, very limited, that allows for those few tough cases -- a dozen, two dozen, not a lot -- of future captures," said Charles D. Stimson, a former deputy assistant secretary of defense for detainee affairs. Stimson and others cite the possibility of compelling intelligence that will not transfer to a court setting and the risk of exposing operational secrets, including cooperation with countries that do not want to be seen assisting the United States.

Moreover, they said, the cases against some detainees already in custody have been so compromised by torture or coercive interrogations that federal prosecutors might refuse to go forward or, if they did, might open the cases to the real risk of dismissal or acquittal. "There will be a sobering moment for enthusiasts of a 'try and release' regime when people start looking at the contents of those detainee files," said Benjamin Wittes, a Brookings Institution fellow and the author of "Law and the Long War," which advocates preventive detention backed by a national security court.

Wittes noted that of the 250 people at Guantanamo Bay, 60 or so have been cleared for release or transfer, and he added that the military at its most optimistic believes only 80 can be put on trial. Currently, 18 detainees are charged before military commissions. He noted that among those not currently charged is Mohammed al-Qahtani, who is suspected of planning to be one of the Sept. 11 hijackers. Qahtani's case, however, has been allegedly tainted by torture. Wittes argues that Qahtani exemplifies a special category of detainees and future captures: those who are too dangerous to release, but difficult or impossible to prosecute.

J. Wells Dixon, a staff lawyer at the Center for Constitutional Rights, which represents Qahtani, disagreed. "What a national security court is designed for is to hide the use of torture and allow the consideration of evidence that is not reliable," he said. Some Obama advisers believe the damage to U.S. interests and image because of the Bush administration's policies is too great to countenance any form of preventive detention. They acknowledge that they do not know how the issue of torture would play out in federal court, even if prosecutors ignore evidence produced by coerced confessions.

"There is always a risk of acquittal, and there is a risk some people who are released will return to the battlefield," said one Obama adviser. "There is no risk-free option."

A Welcome Verdict Cont...

More reaction from last week's Supreme Court ruling in Boumediene v. Bush.

The Post:

The [ruling] that those held at Guantanamo Bay have a constitutional right to challenge their detentions in federal court is a welcome victory for due process and the rule of law. It completes a signal and totally avoidable failure by President Bush, who will leave office with the nation's regime for holding al-Qaeda combatants in shambles. A 5 to 4 majority of the court correctly concluded that habeas corpus, the ancient right to contest one's detention, extends to those held at the U.S. Navy base in Guantanamo Bay. Although it only leases the property from Cuba, the United States exerts complete legal and military control over the base; those held there have nowhere to challenge their detentions other than U.S. courts. To have forbidden the detainees access to those courts would have left the executive branch almost unfettered power to hold people indefinitely -- a proposition that is untenable.

The LA Times:

The 5-4 decision also broke important new ground. In 2004, the court held that detainees imprisoned at Guantanamo, a de facto U.S. territory, could challenge their confinement in a U.S. court under a federal habeas corpus statute. Rather than accept that ruling, Congress obliged the administration by passing legislation making it clear that the habeas statute didn't protect the detainees and purporting to strip federal courts of jurisdiction to hear such appeals. It was a craven capitulation to an administration that has made cutting legal corners the trademark of its anti-terrorism policy.

Bush can rail against the Supreme Court or he can honor the spirit as well as the letter of this ruling and work with Congress to reform a system that has delayed justice for detainees and dishonored America in the eyes of the world. And he should do what both of the men aspiring to succeed him have promised to do - close Guantanamo.

Justice Kennedy: "To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is.' While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody."

Justice Scalia: “It will almost certainly cause more Americans to be killed. The nation will live to regret what the court has done today.” He said the decision was based not on principle, “but rather an inflated notion of judicial supremacy.”

Chief Justice Roberts: The decision represented “overreaching” that was “particularly egregious” and left the court open to “charges of judicial activism.” The decision “is not really about the detainees at all, but about control of federal policy regarding enemy combatants.” The public will “lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”

Barack Obama: "Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy."

Senator John McCain: "The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country."

A Welcome Verdict

Salon has a great piece today that captures the implications of today's Supreme Court ruling in Boumediene v. Bush.

For the third time in four summers, the U.S. Supreme Court has slammed the Bush administration's detention policies at Guantánamo Bay - locking up terrorist suspects indefinitely and beyond the law. And this time, some real progress might even come out of it. In a 5-4 decision drafted by Justice Anthony Kennedy, the court ruled in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus - that is, to challenge the legal basis for their detention in a federal court.

Let's be clear, the decision doesn't do a number of things. It doesn't shut down Guantánamo. It doesn't order all detainees who have not been charged with an offense to be released. And besides saying that the detainees are entitled to a "prompt habeas hearing," it doesn't even say what factors the courts should consider when deciding whether the U.S. government can hold them. But the decision does achieve things that the Bush administration has been fighting against tooth and nail for years.

First, the court upholds the fundamental right to habeas corpus, which has been part of the common-law tradition for centuries and was held dear by America's Founding Fathers. More than any other protection, habeas corpus means that the executive branch cannot arrest and detain you without a legitimate legal reason. The Bush administration wanted to whittle down that right. The Supreme Court said no.

Second, the court makes clear that Guantánamo can't be a law-free zone. The main reason the administration started sending those apprehended in the "global war on terror" to Guantánamo in 2002 was so that it could hold people without intrusive lawyers and courts getting in the way. The court said no; detainees can challenge their cases before the courts.

Third, the court said that laws enacted by Congress at the administration's urging in response to earlier Supreme Court rulings are no equivalent to the right to habeas. Under the Detainee Treatment Act (2005) and Military Commissions Act (2006), detainees who sought to challenge their being held as "enemy combatants" were entitled to bring their claims in special proceedings before the D.C. Court of Appeals. But the court said that this was no substitute for a regular habeas appearance: To require those who have been held for six years to complete this "before proceeding with habeas actions would be to require additional months, if not years, of delay."

Because the Boumediene decision is rooted in the Constitution and not federal statutes (as well as the political realities of the lame-duck administration), it will be much harder for the Bush administration to railroad through Congress new legislation to keep the courts out of the process.

Finally, the ruling may have important implications for the military commissions recently under way at Guantánamo. The administration seems hell-bent on pushing through the military commission trials of several 9/11 suspects, including Khalid Sheikh Mohammed, before the November presidential elections. The inability of the military commissions to provide anything resembling a fair trial has long been clear. The Boumediene ruling has no direct effect on the commissions, but they might have difficulty proceeding if the very basis for their jurisdiction - that the defendant is an "unlawful enemy combatant" - is still subject to litigation.

In the end, Boumediene says that the U.S. president cannot be a law unto himself. It says that anyone held in what is de facto U.S. territory - no matter what crimes he may have committed or where he is from - is entitled to challenge his detention. And that's something really worth celebrating.

From Italy, President Bush said Thursday that he disagreed with the ruling but "we will abide by the court's decision" -- as if he believes the administration has a choice in the matter. In the past, the administration has shown an incredible tenacity for seeking to undermine the rule of law. But then again, maybe President Bush will come to realize that his Guantánamo approach hasn't worked. That detaining hundreds of people who were later released without charge causes more harm than good. That trying people before ad hoc military commissions is a doomed process - and that the federal courts can competently prosecute people for acts of terrorism, as they already do regularly. And that making the U.S. safe against acts of terrorism can be achieved with the help of the law, rather than by riding roughshod over it. Don't hold your breath.

And what was the reaction from Congressional Republicans who repeatedly urged the Supreme Court to clarify the matter? Was it finally realization that a conservative-leaning Supreme Court came to a just verdict on the issue after thoroughly deliberating the matter? Of course not. They reacted with predictable disdain for an outcome that completely undermines their political rhetoric and fear-mongering. For these folks, national security consists of nothing less than throwing the Constitution out the window and waving an American flag.

Senator John Kerry: "Today, the Supreme Court affirmed what almost everyone but the administration and their defenders in Congress always knew. The Constitution and the rule of law bind all of us even in extraordinary times of war. No one is above the Constitution."

Senator Joe Biden: "Today's opinion is an important and much-needed check by a coequal branch of government on an administration which has shown utter contempt for the rule of law."