To reach the desired result, Yoo and Philbin relied almost entirely on Johnson v. Eisentrager, a case involving German soldiers captured in China during the closing weeks of World War II. Their analysis of the decision, however, is dangerously simplistic. After Germany surrendered but while Japan fought on, the United States captured 27 Germans in China and charged them with assisting the Japanese army, in violation of the laws of war. At trial, the prisoners were represented by counsel and had the right to discover and introduce evidence, to call and confront witnesses, and to make opening and closing statements. After a trial that lasted months, six of the prisoners were acquitted and released, while 21 were sentenced to prison. Later they sought habeas relief in Washington, claiming their trial had been unlawful. In Johnson, the Supreme Court disagreed, holding their trial had been fair, and that they had no right to habeas.
At first blush, it is hard to see how Johnson could help the administration, since the prisoners at Guantánamo, unlike the prisoners in Johnson, have been detained for more than two years with no process. It is one thing to hold that war criminals tried, convicted, and sentenced by a lawful commission, who had a full and fair opportunity to demonstrate their innocence and secure their release, could not seek further review in a civilian court. It is quite another to extend that holding to people who have never been charged.
But Yoo and Philbin relied on other language in Johnson to support their conclusion. In its opinion, the Supreme Court described post-war China (where the crime and trial took place) as an area subject to martial law; it described Germany (where the prisoners were eventually incarcerated) as enemy occupied territory. Collectively, the Court variously described the two areas as outside our “territorial jurisdiction,” or beyond our “sovereignty.” Without elaborating on which of these appellations was controlling, the Court suggested that the circumstances in Johnson placed the prisoners beyond the jurisdiction of a federal court.
Seizing on some of this language, Yoo and Philbin point to our lease with Cuba for the base at Guantánamo. Under the lease, the United States has “complete jurisdiction and control” over Guantánamo, but Cuba retains “ultimate sovereignty.” These terms are not defined. Still, Yoo and Philbin rely on this language to argue that Guantánamo is no different than post-war Germany and China, since all could be described as beyond our “sovereignty.” Neither the history nor the present reality of Guantánamo Bay is relevant to this argument, nor is the undeniable difference between Guantánamo and an active theater of military operations: under the lease, Cuba retains some undefined and indiscernible quantum of “sovereignty” over the base, and that – at least for Philbin and Yoo – was conclusive. It is worth examining this contention in more detail.
In 1901, after the Spanish-American War, the United States occupied Cuba. We offered to end the occupation, but only if Cuba included in its constitution a number of clauses drafted by the United States.1 Known as the Platt Amendment, these provisions forced Cuba to agree “that the United States may exercise the right to intervene” in Cuba and her affairs, and that Cuba would “embody the foregoing provisions in a permanent treaty with the United States.” Cuba reluctantly added the provisions, verbatim, as an appendix to her constitution June 12, 1901.1
One provision of the Platt Amendment (and therefore of the Cuban constitution) required that Cuba “sell or lease to the United States the lands necessary for coaling or naval stations.” Two years later, in 1903, Cuba leased Guantánamo Bay to the United States. The lease included the curious provisions identified by Professors Yoo and Philbin: the United States would exercise “complete jurisdiction and control,” while Cuba retained “ultimate sovereignty.”2 The lease is indefinite, and cannot be terminated without the consent of the United States, which has repeatedly declared its intention to remain as long as it sees fit. Guantánamo is apparently the only United States military base in the world where the United States exercises complete and exclusive jurisdiction and control in perpetuity.
In light of this history, it is not surprising that the United States has long considered Guantánamo “practically … a part of the government of the United States.” Solicitor General Olson, who represented the United States before the Supreme Court in Rasul, once described the base as part of our “territorial jurisdiction” and “under exclusive United States jurisdiction.”3 The Executive determines who may enter and leave the base, and enjoys the power under the lease “to acquire … any land or other property therein by purchase or by exercise of eminent domain.” The United States is required under the lease to maintain “permanent fences” around the perimeter of the base. Inside these fence, however, the base enjoys all the trappings of a small American city; it is larger than Manhattan and more than half the size of the District of Columbia.
Congress has often extended federal statutes to Guantánamo and federal courts routinely take jurisdiction over disputes that arise from the base.4 United States law governs the conduct of all who are present on the base, and violations of criminal statutes are prosecuted in the government's name.1 Equally important, Cuba's laws are wholly ineffectual in Guantánamo. The Castro government has long characterized the United States presence as illegal and refuses to cash the annual rent payment of $4,085 the United States has tendered pursuant to the lease.2 “Ultimate sovereignty,” however, apparently does not imply any actual authority, as the United States has ignored Cuba's complaints.
In sum, the arguments advanced by Yoo and Philbin reduce to the claim that the unexplained use of the term “ultimate sovereignty” in the lease with Cuba means that Guantánamo – despite all appearances to the contrary – is in fact no different than enemy occupied territory or an area subject to martial law. During the litigation in Rasul, this argument came to be known as “the Guantánamo fiction.”
If the jurisdiction memo placed the prisoners beyond the protection of the federal courts, it was the Geneva Convention memo that literally placed them beyond the law. In this memo, Yoo and Delahunty constructed an elaborate argument that the prisoners at Guantánamo were not entitled to the protections of either the Geneva Convention, or customary international law. [Customary international law refers to those principles that have achieved such universal acceptance among the nations of the world – like the prohibition on torture – as to have the force of law.] Yet at the same time, Yoo and Delahunty concluded that while the prisoners did not enjoy any protections under the laws of war, they could be subjected to its disabilities, including both punishment as war criminals and indefinite detention. Yoo and Delahunty acknowledged that this result could seem “counter-intuitive,” but defended it as “a product of the President's Commander-in-Chief and Chief Executive powers to prosecute the war effectively.”
A comprehensive critique of the Geneva Convention memo is beyond the scope of this essay. But it is also unnecessary for our purposes, since certain deficiencies are apparent. First, the memo suffers from an obvious logical lacuna. Yoo and Delahunty argue that prisoners at Guantánamo have no rights because Taliban and al-Qaeda fighters, for a variety of reasons, do not enjoy the protections of either the Geneva Convention or customary international law. But this argument collapses if the prisoners are not associated with these groups. In other words, the argument suffers from the same myopia that clouds the administration's entire approach to the Guantánamo detentions – viz., it assumes the military has seized the right people.
The Geneva Convention explicitly accounts for the possibility that the military may capture a person whose status is not immediately clear, and who may in fact be innocent. In that event, the Convention requires that “any doubt” regarding the person's status must be resolved by a “competent tribunal,” and that all detainees enjoy POW status until such a tribunal determines otherwise. Furthermore, and perhaps more importantly, the United States military has adopted a comprehensive set of regulations that implement this requirement. These regulations trace their origin to the Vietnam War, the first major conflict when
the military regularly captured people whose status under the Convention was in doubt. Rather than allow innocent detainees to languish in custody, the military created “Article 5” tribunals to resolve all doubtful cases. At these tribunals, detainees enjoyed the “fundamental rights considered to be essential to a fair hearing,” including the right to notice and an opportunity to be heard through counsel. Today, these regulations are binding on all branches of the Armed Forces, and Article 5 hearings have become a settled part of military practice; if an Article 5 tribunal determines the detainee is innocent, he must be immediately released.1 In their memo, Yoo and Delahunty did not discuss this portion of the Geneva Convention, nor did they mention the relevant military regulations.
Second, and far more ominously, the Geneva Convention memo seriously misperceives the nature of the Commander-in-Chief power. Yoo and Delahunty advance the notion of an imperial presidency to its absolute limit. They suggest not only that the Commander-in-Chief has unconstrained power over the detainees, but that any attempt by Congress to rein in this power would likely be unconstitutional. If this is correct, then the courts as well must bow to Executive power in this arena.
If such an argument were accepted, it would reverse a line of decisions that date from virtually the dawn of the Republic. It was 1804 when the Supreme Court first struck down unilateral Executive action taken by the President in his capacity as Commander-in-Chief. Since that time, the law has developed with unmistakable clarity: “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” Or, as Chief Justice Stone put it somewhat more recently, executive branch action is not “proof of its own necessity.” The notion that the President, simply by assuming the mantle of Commander-in-Chief, may disregard Congress, the federal courts, and the binding obligations of international treaties is simply breathtaking.1
•••••
It is important to understand the combined effect of these memos. The Geneva Convention memo removed the detainees from the protections of the laws of war. But the jurisdictional memo ensured that no other legal regime could be put in its place. The detainees would not enjoy the benefit of an extant legal system specifically designed to protect people seized during armed conflict, but nor would they be able to secure the benefit of whatever protections might derive from a federal court. Et voilà – a prison beyond the law.
In the years to come, much will be written about these memos, and the others that followed in their wake. There is, for instance, an undeniable Alice In Wonderland quality to some of the reasoning: in the first memo, Yoo and Philbin argued that Guantánamo was beyond the jurisdiction of a United States court because it is outside our sovereignty. Yet in a later memo, administration lawyers argued that because Guantánamo is within the United States, Executive officials are not constrained by federal laws against torture, since they operate only in a foreign country. Reasoning like this is apparently the price of a dance with the devil.
And what do we distill from the fact that the memos themselves are so simplistic? If nothing else, it is unfortunate the administration had to rely on such ill-considered recommendations. We can only wonder whether a more thoughtful treatment of the issues – one that paid greater heed to the lessons of prior wartime excesses, for instance – would have led to a different result. Still, in keeping with the view expressed earlier, we should probably not be overly critical of the authors; it must be allowed that they were working under the same pressure that bedeviled so many before them. In that light, their work illustrates yet again “how war can upset a first-class thinker.”1
But there is a more fundamental objection to these memos. In the middle of a conflict – precisely when history cautions us that we are least apt to be thinking clearly – the administration set about disabling the very instruments that mark our commitment to the rule of law: that the military must always be subject to civilian rule; that the proper limits of military discretion are ultimately, and always, judicial questions; that armed conflict – and particularly the treatment of prisoners – is not a descent into lawless anarchy, but is governed by carefully negotiated and reciprocal obligations; and that restraints on individual liberty must be subject to review by some impartial tribunal. Now was no time for flying blind.
Rasul v. Bush: The Supreme Court Weighs In
Every year, the Supreme Court agrees to review only a tiny fraction of the cases clamoring for its attention. For that reason, some lawyers believe, not without reason, that the most important document in a case is the one that petitions the Court to accept review, called the Petition for Writ of Certiorari. The Petition in Rasul went through perhaps a dozen drafts, and in the final product, we tried to capture not simply the legal reasons for review, but the moral consequences if the Court remained silent. In other words, we tried to convey what it would mean to the prisoners if the Court allowed the administration to create and maintain a prison beyond judicial scrutiny.
Certainly it would mean that prisoners could be tortured with impunity. But I was writing before the disclosures about Abu Ghraib, and we had no evidence that the prisoners at Guantánamo had been mistreated in the same manner. It would also mean that scores of innocent people could be left to languish. But this was before we learned that other military facilities were filled beyond capacity with innocent people. And because we had not been given access to our clients, we knew only what we could piece together from the fragmented accounts of families and friends, most of whom did not know how or why their relatives had been arrested.
But in the end, I realized my greatest concern was that the administration would simply forget about them, “in the vain hope the world will as well.”1 The administration may have expected the country would eventually turn its attention elsewhere. In time, the prisoners would settle into the mind-numbing routine that characterizes prison life across the country. Nameless and faceless, lost to a world that would gradually grow indifferent, they would be left to “drift through life rather than live, the prey of aimless days and sterile memories.”2
On November 10, 2003, the Supreme Court agreed to review the case. Later in the term, the Court also agreed to review cases involving the detention of two U.S. citizens, Jose Padilla and Yasser Hamdi. Padilla had been seized at O'Hare Airport in Chicago; Hamdi was allegedly seized in Afghanistan. Both were imprisoned at a brig in Charleston, South Carolina. Like the prisoners at Guantánamo, the President had dubbed them “enemy combatants” and, by nothing more than his ipse dixit, claimed they could be held without charges or access to counsel, and without allowing them an opportunity to be heard by a impartial tribunal, for as long as he saw fit. Formally, the three cases – Rasul, Padilla, and Hamdi – asked whether, and to what extent, the judiciary could police the bounds of the Commanderin-Chief power to detain people seized in apparent connection with the war on terrorism. But on the level of more immediate concern to the prisoners, they would determine whether the administration could detain people beyond the law.3
On the next-to-last day of the Term, the Court issued its decisions in all three cases. The holdings can only be described as a stinging rebuke to the administration. Eight members of the Court rejected the administration's position in Hamdi. Writing for a plurality of four, Justice O'Connor tersely reminded the administration that “[a] state of war is not a blank check for the President.” The Commander-in-Chief power, she noted, is not a license to “turn our system of checks and balances on its head.” In the words of Justice Souter, the President seems to have forgotten that he “is not Commander-in-Chief of the country, only of the military.”
And the most passionate rebuke to the administration's position in Hamdi may have come from its most conservative member. Joined by Justice Stevens, Justice Scalia reminded the administration that democracy dies behind closed doors: “If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by
silent erosion.” To prosecute his habeas action, Hamdi must be given prompt notice of the allegations against him, and an opportunity to be heard. And if the administration cannot prove its claims, Yasser Hamdi must be released.
The administration fared no better in Rasul, where the Court held, by a 6–3 margin, that our clients could invoke the protection of the federal courts to determine whether their detention was lawful. The Court quickly dispatched the “Guantánamo fiction” that had prevailed in the lower courts, concluding the federal court in the District of Columbia had jurisdiction, notwithstanding the fact that Cuba retained “ultimate sovereignty” over Guantánamo Bay. For more than two years, we had argued the courts should look to the reality of events at Guantánamo, rather than some mythical notion of Cuban sovereignty. The Supreme Court agreed. “What matters,” Justice Kennedy explained, “is the unchallenged and indefinite control that the United States has long exercised over Guantánamo Bay. From a practical perspective, the indefinite lease of Guantánamo Bay has produced a place that belongs to the United States.” At the same time, the Court also rejected the outrageous suggestion that the President, in his capacity as Commander-in-Chief, could detain foreign nationals at Guantánamo indefinitely, “without access to counsel and without being charged with any wrongdoing.” Lest anyone misunderstand, the Court made plain that such detention was “unquestionably” illegal.1
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