Detention: Law of

Linda Greenhouse on "The Mirror of Guantanamo"

By Benjamin Wittes
Thursday, December 12, 2013, 7:26 AM

Linda Greenhouse has a thoughtful column over at the New York Times entitled "The Mirror of Guantanamo" about the Abdul Razak Ali case---about which I wrote some thoughts last week. Ten years ago, Greenhouse notes, the courts first delved into the Guantanamo issue:

It was on Nov. 10, 2003, that the Supreme Court surprised much of the legal world by agreeing to hear appeals from two groups of men held at the island prison that the Bush administration had set up in the belief that it would remain outside the reach of American judges. The Supreme Court’s unexpected assertion of jurisdictionwas a leap into the unknown.

In their willingness to take on the political branches, were the justices about to become de facto field marshals in the “war on terror,” calibrating by themselves the balance between the competing claims of liberty and security? It was possible to think so, as the Bush administration proceeded to lose three rounds of cases in the Supreme Court, culminating in Boumediene v. Bush, the 2008 decision that established the detainees’ right to seek release through petitions for habeas corpus. After Boumediene, the political system held its breath for the next step. Would the court back off? Where would it end?

It’s ending, in all probability, with cases like Ali v. Obama, cases no one is holding their breath for any longer, cases hardly anyone even notices these days.

Greenhouse then goes on to give an admirably concise account of the D.C. Circuit's jurisprudence in this space and Judge Harry Edwards's anxieties about it. She then concludes:

Readers of this column may have noticed that I write about Guantánamo every few months, even as it fades ever further from public concern. While the Ali decision prompted these reflections on how we got to where we are today, there is another reason as well.

This was the final week of a semester during which I’ve been co-teaching a law school course about the judicial responses to the issues raised by Guantánamo.

During the final class meeting, one student, noting that the Guantánamo population has shrunk even as urgent human rights crises that place many more people at risk have erupted in other parts of the world, asked the deliberately provocative and not entirely rhetorical question, Why should we continue to care about Guantánamo?

The ensuing conversation was as lively as it was gratifying. Rather quickly, a consensus emerged: We care because the Guantánamo saga isn’t only about the 162 men still held there, or the hundreds who have come and gone. It’s about the health of our own institutions, our own commitments. We look in the mirror of Guantánamo and see ourselves.

Our own Jane Chong is a member of Greenhouse's Yale class, and I would be interested to hear her thoughts on the conversation Greenhouse describes. For what it's worth, I agree with the class's conclusion that these cases are also about the health of our own institutions---and Greenhouse's suggestion that Guantanamo is a kind of mirror in which we see ourselves. But I think there's also something more prosaic and earthly going on here too. As Bobby and Larkin Reynolds and I wrote in the introduction to our now-somewhat-dated paper on the Guantanamo cases:

The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts might acquire habeas jurisdiction—although, as we discuss briefly below, the prospects for wider habeas jurisdiction are unclear. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts; indeed, they might even have an indirect but significant impact on superficially unrelated military activities, such as the planning of operations and decisions to target suspected enemy combatants with lethal force. In short, the legislature’s passivity to date combined with President Obama’s decision not to seek new law to address these questions have together delegated to the courts a remarkable task: defining the rules of military detention.

In the short term, habeas jurisdiction beyond Guantanamo now seems unlikely. But given Congress's unwillingness to legislative rules for detention, it seems likely that these cases will represent the substantive law of detention long into the future and will probably serve as a reference point for any future congressional action. What's more, the impact of these cases beyond the sphere of detention is, at this point, a reality too. They are, after all, the only means through which the courts have had an opportunity to expound upon the meaning of the AUMF. So they have implications for targeting, and the administration has cited them in support of its view of the scope of the conflict geographically and with respect to associated forces as well. They are thus important to us not merely as a window onto ourselves but as a vehicle for discussing and defining the law of a conflict about which we still harbor doubts and have many questions.