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A Prison Beyond the Law

ISSUE:  Fall 2004


Not long after September 11, 2001, the Bush administration began to develop plans for a prison at the Guantánamo Bay Naval Station, in Cuba. Though modeled physically on maximum-security prisons in the United States, this facility—with a maximum capacity of 1,100 inmates—would not hold convicted criminals. In fact, most of the inmates at this prison would never be charged with a crime, let alone convicted. The prison would house the people seized in ostensible connection with the war on terrorism, most of whom would never be brought before a tribunal of any kind and would never be given an opportunity to secure their release by establishing their innocence. Designated “enemy combatants” by the president, they would be held without legal process, consigned to live out their days in isolation until the administration saw fit to release them.

This was the prison my colleagues and I challenged in Rasul v. Bush. On behalf of four prisoners—two from Britain and two from Australia—lawyers with the Center for Constitutional Rights and I filed an application in federal court seeking a writ of habeas corpus. Habeas acts as a check on executive detention by forcing the sovereign to justify a prisoner’s detention in open court. Sometimes called the Great Writ, habeas has been part of our law for more than 200 years and is one of the only protections of individual liberty enshrined in the Constitution (as opposed to the protections subsequently added in the Bill of Rights). Consistent with this historic purpose, we argued that the United States had to establish the lawfulness of our clients’ detention by a fair process.

No small amount of confusion has attended the litigation in Rasul, and it is perhaps important to note what is not at stake. We did not argue—and have never argued—that the administration could not detain people seized in connection with the war on terrorism. We argued only that they could not detain them without some process to determine whether the detention was lawful. Nor did we argue that this process must include all the trappings of a federal criminal trial. We sought only a lawful and fair process that comported with the core understanding of habeas: notice and an opportunity to be heard before an impartial court that made timely decisions based on fixed and transparent standards. Finally, we did not ask that our clients be brought to the federal courthouse while this process unfolded. Instead, we asked that the federal court provide us access to our clients at Guantánamo, so they could be heard through us.

The litigation in Rasul has generated a host of intriguing issues, any one of which is worth considerable attention. There is, for example, the matter of the prisoners themselves. So far, the United States has successfully kept most of the Guantánamo inmates in the dark about the litigation.1 The argument in favor of complete secrecy runs something like this: The administration believes that September 11 represents a failure of the intelligence community. While we may never know whether, with better intelligence, the United States could have prevented the attacks that morning, the administration believes that better intelligence is essential to preventing more attacks in the future. Since we lack reliable informants on the ground, we must get this intelligence by any means available to us, including interrogations of the people seized during the war.

According to the administration, effective interrogations require that the prisoner be separated from all outside influence. Terrorists, they argue, have been trained to resist the conventional blandishments to cooperate and will withhold all useful information so long as they believe help is on the way. A successful interrogation, therefore, requires that prisoners become convinced that their welfare depends entirely on their interrogators. The only link to the outside world is the contact permitted by the captors. No family member, no member of the press, and certainly no attorney, can visit with the inmates, who under all circumstances must not learn of any litigation filed on their behalf, for fear that the knowledge will fortify them in what the administration takes to be their unbending determination to resist interrogation. To implement this vision, the administration needed a place where it could conduct interrogations free from any interference by the outside world—and in particular, by a court and its dreaded accoutrement: lawyers.

The upshot of this logic is that, so far as I am aware, Rasul is the only case in U.S. history in which litigants have been deliberately kept unaware that their fate is being decided by the United States Supreme Court.2

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 percent of the people imprisoned during the insurgency in Iraq are innocent.3 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.4

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.5

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.6

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 that 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.7

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 U.S. 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 400,000 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.8 As 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.9

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?10

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.11 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.12

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.”13

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.”14 Over 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.”15 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.16 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 10 percent of all general aviation accidents, and 90 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.17

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.18 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 perceived 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 its presence there 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 its 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 Guantanamo 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.19

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.20 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.

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, 6 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 that 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 government, 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 postwar 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 postwar 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.21 Known as the Platt Amendment, these provisions forced Cuba to agree “that the United States may exercise the right to intervene” in Cuba and its 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 its constitution on June 12, 1901.22

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.”23 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 U.S. 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.”24 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 fences, 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.25 U.S. law governs the conduct of all who are present on the base, and violations of criminal statutes are prosecuted in the government’s name.26 Equally important, Cuba’s laws are wholly ineffectual in Guantánamo. The Castro government has long characterized the U.S. presence as illegal and refuses to cash the annual rent payment of $4,085 the United States has tendered pursuant to the lease.27 “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 U.S. 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 during which the military regularly captured people whose status under the Geneva 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.28

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 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.29

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 neither 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 U.S. 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.”30

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.”31 The administration may have expected that 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.”32

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, José Padilla and Yaser 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. The president had dubbed them, like the prisoners at Guantánamo, “enemy combatants” and, by nothing more than his ipse dixit, claimed they could be held without charges or access to counsel, and without an opportunity to be heard by an 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 commander in 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.33

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, Yaser 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 that 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 that 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 Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo 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.34

Students and scholars will study these decisions for years to come. Within months, the trickle of law review articles will begin to appear; in time, the trickle will 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.35


1 As of this writing, approximately 600 people are imprisoned at Guantánamo. Two of my clients—British nationals Shafiq Rasul and Asif Iqbal—were released during the litigation.

2 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.

3 See, e.g., Jess Bravin, The Fight for Iraq: Army Report Omitted Prison Details (Wall Street Journal, June 4, 2004,at 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 percent of the prisoners were innocent. According to Colonel Chamberlain, “It’s like the Roach Motel, ‘They can check in but they never check out!’” Colonel Chamberlain’s assessment was omitted from the portion of the report originally made public by the Department of Defense. Id.; see also Maj. Gen. Antonio M. Taguba (Coalition Forces Land Component Command), Article 15-6 Investigation of the 800th Military Police Brigade (March 9, 2004), available at (last visited July 1, 2004) (Taguba report).

4 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 was 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 30 (New Press 2003).

5 See, e.g., Final Report, Japanese Evacuation from the West Coast at 34 (1942) (“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.

6 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 at 12 n. 22 (June 4, 2004) (“senior 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.”).

7 Neil Lewis & Eric Schmitt, Lawyers Decided Bans on Torture Didn’t Bind Bush, New York Times, June 8, 2004, at A1; James Risen, David Johnston & Neil A. Lewis, The Struggle for Iraq: Detainees; Harsh C.I.A. Methods Cited in Top Qaeda Interrogations, New York Times, May 13, 2004; Tim Golden & Don Van Natta, Jr., U.S. Said to Overstate Value of Guantanamo Detainees, New York Times, June 21, 2004, at A1; The New York Times, A Guide to the Memos on Torture (June 27, 2004) (available at (last visited July 6, 2004) (providing links to the various memos released to date).

8 See Arnold Krammer, Nazi Prisoners of War in America (Stein & Day 1979).

9 See Tim Golden & Don Van Natta, Jr., U.S. Said to Overstate Value of Guantanamo Detainees, New York Times, June 21, 2004, at A1 (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 1991); William Rehnquist, All the Laws But One: Civil Liberties in Wartime (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, All the Laws But One at 129–31;Neely, The Fate of Liberty at 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).

10 The secretary of the army recently suggested that 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).

11 Peter Irons, Justice at War (Oxford 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 (9th 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, 19 Haw. L. Rev. 1 (Fall 1997).

12 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 & Van Natta, U.S. Said to Overstate Value of Guantanamo Detainees, supra n.7.

13 Jacobus ten Broek, Edward N. Barnhart, Floyd W. Matson, Japanese American Evacuation and Resettlement: Prejudice, War and the Constitution 83 (Berkeley 1958) (quoting Monterey Press Herald, Jan. 30, 1942). For a discussion of the same quote, see G. Edward White, Earl Warren: A Public Life 69 (Oxford 1982) (quoting Associated Press news release, Jan. 30, 1942).

14 Prejudice, War and the Constitution at 84 (quoting Hearings, 77th Congress, 2d sess., House, Select Committee Investigating National Defense Migration (Washington: G.P.O. 1942)).

15 Earl Warren, The Memoirs of Earl Warren 149 (Doubleday 1977).

16 Earl Warren: A Public Life at 77.

17 Spatial disorientation 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 visited May 22, 2004). 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, available at (last visited May 22, 2004). The National Traffic Safety Board concluded that 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.” See (last visited May 22, 2004).

18 As with all things Lincoln, a number of scholars have pondered the lawfulness of his various wartime actions. See, e.g., Rehnquist, All the Laws But One, supra n. 9; Daniel Farber, Lincoln’s Constitution (University of Chicago 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 Chaffee, Free Speech in the United States (Lawbook Exchange 2001, originally published Harvard University 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 (University of Minnesota 1955). The literature on the Japanese internments is simply voluminous. Some of the most important work is Japanese American Evacuation and Resettlement: Prejudice, War and the Constitution, supra n. 13; Justice at War, supra n. 11; Eugene Rostow, The Japanese American CasesA Disaster, 54 Yale L.J. 489 (1945). 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, Enemy Aliens (New Press 2003). 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, 94th Congress, 2nd Session (1976) (the “Church Committee”).

19 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.

20 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. I hope to complete a more thorough discussion of these various memos in a subsequent essay. Links to the memos are available on a number of websites. See, e.g., The New York Times, A Guide to the Memos on Torture (June 27, 2004) (available at (last visited July 6, 2004).

21 Leland H. Jenks, Our Cuban Colony at 77–79 (Vanguard Press 1928). 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. Id. at 77–78.

22 Id. at 80–82.

23 Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, 23 Feb. 1903, art. III, T.S. No. 418 (Agreement).

24 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).

25 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)).

26 See, e.g., United States v. Lee, 906 F.2d 117 (4th Cir. 1990).

27 Bird v. United States, 923 F. Supp. 338, 341 n.6 (D. Conn. 1996); Anita Snow, Cuba Attacks Guantanamo Use for Prisoners, Wash. Post, Dec. 27, 2003, at 14.

28 The relevant provision of the Convention can be found at Geneva Convention III, art. 5, 6 U.S.T. at 3324, 75 U.N.T.S. at 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 and Navy, the Air Force, and the Marine Corps (Oct. 1, 1997)). For a discussion of the history and current use of these provisions, see Frederic L. Borch, Judge Advocates in Combat (Office of the Judge Advocate General 2001); Howard S. Levie, Prisoners of War (Naval War College Press 1978).

29 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).

30 Chafee, Free Speech in the United States, infra n. 18, at 108 n. 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.

31 Rasul v. Bush, No. 03-334,Petition for Writ of Certiorari at 13.

32 Albert Camus, The Plague at 66 (Modern Library ed. 1948).

33 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 that 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 elsewhere in this volume.

34 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.

35 One of the pleasures of an essay like this is the opportunity it provides to recognize some of the people whose effort contributed to the result. For nearly three years, I have had the pleasure to work with brilliant lawyers at the Center for Constitutional Rights: Michael Ratner, Barbara Olshansky, and Steven Watt. Shortly after we filed in Rasul, a team of lawyers at Shearman & Sterling brought a similar action on behalf of twelve Kuwaitis. Their case, Al Odah v. United States, was consolidated with ours. It was an honor collaborating with the Shearman team, led by Tom Wilner and Neil Koslowe. Clive Stafford Smith has been a friend and colleague for many years, and I learned long ago to trust his judgment—a lesson often reaffirmed in this litigation. Eric Freedman, at Hofstra University Law School, is an expert on habeas and provided invaluable counsel. Douglas Cassel, at Northwestern University Law School, served as our guide through the bewildering complexities of international humanitarian law. Tony Amsterdam, at New York University Law School, added his incomparable skills when we reached the Supreme Court, and the litigation was greatly improved by his work. In the Court itself, we enlisted Judge John Gibbons, former chief judge of the Third Circuit Court of Appeals, to present the oral argument. Gitanjali Gutierrez, a friend and promising young lawyer at Judge Gibbons’ firm, worked tirelessly on every part of the Supreme Court case. I owe these people, and many others, a debt I can never repay.


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