The Military Commissions Act and the Detainee Debacle: A Response

by: Gerald L. Neuman

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February 12, 2007

48 Harv. Int’l L.J. Online 33 (2007)

Gerald L. Neuman is J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School.

This article is a response to John B. Bellinger, Remarks on the Military Commissions Act, 48 Harv. Int’l L.J. Online 1 (2007), http://www.harvardilj.org/online/91.

The initial decision to transport detainees halfway around the world to Guantanamo was based primarily on the calculation that the government could operate in a sphere of lawlessness there, outside the scrutiny of courts or the press and free to make up any rules it liked. Guantanamo is not sovereign territory of the United States because its nominal sovereignty belongs to Cuba. The United States occupies the base under a colonial-era lease, essentially perpetual, that gives it complete jurisdiction and control to the exclusion of any other sovereignty. The government knew that there was a risk that the courts would reject this legal theory of unaccountability. Even the Office of Legal Counsel recognized that some courts had held that Haitian refugees detained at Guantanamo in the early 1990s were protected by the Constitution, but the government was optimistic that these rulings would not be repeated.^_[3]  The government continues to argue that Guantanamo is extraterritorial and therefore beyond the reach of constitutional law, statutory rights, and human rights treaties.

Deliberately setting up a prison camp in a lawless enclave was an invitation to abuse. The abuses have predictably followed, despite the government’s Orwellian assurances that prisoners are treated “humanely.” The educated public, having witnessed the mendacity of the torture memos and numerous other evasive denials, knows how to read such assurances.

Not all the prisoners brought to Guantanamo were captives from the war in Afghanistan. Some have been abducted from Europe or Africa. The laws of war may permit detention of enemy soldiers, but they do not license the abduction of allied nationals from allied states and detention without hearing or recourse based solely on the suspicions of the President and his delegates.

The Supreme Court rejected the Executive’s construction of Guantanamo in Rasul v. Bush,^_[4] and again in Hamdan v. Rumsfeld.^_[5] In Rasul, the Court upheld federal habeas corpus jurisdiction to inquire into the lawfulness of the detention of foreign nationals at Guantanamo. The majority observed that holding petitioners there in prolonged executive detention, without access to counsel and without being charged with any wrongdoing, would unquestionably violate U.S. law.^_[6] In Hamdan, the Court exercised that jurisdiction and found unlawful the Executive’s system for trying prisoners by means of military commissions that violated congressional statutes and international law.

The government refuses to accept the teachings of these cases and pressured Congress to enact the Military Commissions Act to undercut the rule of law at Guantanamo.^_[7] That statute does many things, but it will undoubtedly go down in history for its assault on the writ of habeas corpus. As the government interprets the statute, it permanently abrogates the writ for any foreign national, at any location, determined by the Executive to have been properly detained as an enemy combatant, regardless of whether any other judicial remedy exists for examining the lawfulness of the detention.^_[8] The statute represents a vast threat of irremediable arbitrary detention to the tens of millions of non-citizens residing in the United States and to any other foreign national whom the government chooses to abduct abroad based on faulty intelligence or mistaken identity.

Congress has the limited power to suspend the privilege of the writ of habeas corpus temporarily, “when in Cases of Rebellion or Invasion the public Safety may require it.”^_[9] But the Military Commissions Act does not involve an exercise of that power: Congress made no finding of rebellion or invasion in 2006, nor could it have done so, and the withdrawal of habeas jurisdiction was deliberately permanent. Congress has no power to permanently abrogate the writ.^_[10]

Mr. Bellinger defends this abrogation by claiming that “[a]liens captured outside the United States never had a constitutional right to habeas corpus.”^_[11] He is mistaken. The guarantee of the writ protects every prisoner in the United States. In the Anglo-American tradition, habeas corpus is available for inquiring into the lawfulness of the detention of non-citizens brought involuntarily within the national territory, whether as extradited criminal defendants, slaves, interdicted refugees, maritime drug smugglers, or purported prisoners of war.^_[12] Of course, if the detention is lawful, then the writ provides no remedy. But lawfulness has to be determined by the court. In the eighteenth century, the British courts employed the writ to examine the lawfulness of detention of foreign sailors brought to England as prisoners of war.^_[13] In the twentieth century, U.S. courts employed the writ to examine the lawfulness of detention of German nationals expelled from Latin America and brought to the United States as dangerous enemy aliens.^_[14] As Justice Sandra Day O’Connor wrote, “absent suspension, the writ of habeas corpus remains available to every individual detained within the United States.”^_[15]

The government seeks to circumvent this principle with its usual argument that Guantanamo is extraterritorial and beyond the reach of the Constitution. To the contrary, Guantanamo is the United States. It has become the face that the United States presents to too much of the world. As Justice Anthony Kennedy emphasized in his concurring opinion in Rasul, “Guantanamo Bay is in every practical respect a United States territory.”^_[16] The United States owes legal protection to any prisoners it detains there.

The anomalous regime that the government seeks to maintain at Guantanamo should be terminated. It serves no legitimate purpose. Whatever can be done only at Guantanamo should never have been done at all.