Detention: Law of

Mea Culpa: Jonathan Hafetz

By Benjamin Wittes
Saturday, September 10, 2011, 1:04 PM

Jonathan Hafetz, a habeas lawyer and law professor at Seton Hall University School of Law and the author of  Habeas Corpus after 9/11: Confronting America's New Global Detention System, writes in with the following in connection with Lawfare's 9/11 10th Anniversary Project:

The central challenge facing lawyers in the early days of the Guantánamo habeas corpus litigation was to persuade the Supreme Court to recognize federal jurisdiction over the cases. Various lawyers involved (including myself) made a strategic choice to appear minimalist, emphasizing that habeas jurisdiction would not decide anything beyond providing a forum for courts to adjudicate the legality of detention at some future date. The strategy, in short, was to win jurisdiction and deflect harder questions surrounding the “war on terror,” most importantly the legitimacy of holding suspected terrorists outside the criminal justice system.

After winning a statutory right to habeas in Rasul v. Bush in 2004, the growing band of Guantánamo habeas lawyers, along with advocacy groups, continued to pursue this strategy in opposing legislation that threatened to repeal the habeas right the Supreme Court had recognized. With the litigation stalled, habeas lawyers focused their efforts outside the courtroom, writing op-eds, engaging the press and public, and lobbying Congress. The pitch for habeas focused on the need to provide detainees with a fair judicial process instead of the flawed, error-prone Combatant Status Review Tribunals (CSRTs) the Defense Department had hastily implemented to review the detainees’ status. The main problem with Guantánamo, we suggested, was not that the United States was detaining people as “enemy combatants” but that it was not detaining the “right people.” We highlighted cases of innocent farmers and herders sold for bounty and wrongfully imprisoned. We avoided more controversial cases like that of alleged 9/11 mastermind Khalid Shaikh Mohammed, held for years in a secret CIA “black site,” rather than insisting on his right not merely to habeas but to a criminal trial.

Although we failed to stop Congress from twice passing measures stripping the courts of habeas jurisdiction, the votes on the habeas provisions were close. We also helped educate the public about habeas’ importance. Finally, we succeeded in establishing a constitutional right to habeas in Boumediene v. Bush, ensuring that Guantánamo detainees would have an opportunity to challenge their confinement before a federal judge. This right, moreover could potentially extend anywhere U.S. was holding a prisoner, as the Supreme Court rejected any rigid territorial limits to the Constitution’s application.

In one sense, Boumediene thus marked a triumph of the habeas litigation and advocacy strategy. But this strategy also had its limits. It did little to restrict the government’s authority to hold suspected terrorists indefinitely in military custody or to challenge the underlying premise of the “war on terror.” The post-Boumediene litigation, moreover, has shown the habeas process to be relatively minimal, lacking many of the safeguards afforded criminal defendants, including the opportunity to confront and cross-examine witnesses.  (Virtually no witnesses for the government ever testify in the Guantánamo habeas proceedings because the government can rely exclusively on hearsay).

Meanwhile, the policy of indefinite detention has continued to gain acceptance among all branches of government and the American public. The question today is not whether this policy will remain but how much it will expand. Pending legislation, for example, would go beyond any prior post-9/11 measure by mandating the military confinement of certain terrorism suspects, thus requiring the president to seek a waiver from the Secretary of Defense in order to bring a criminal prosecution.

As lawyers, our primary duty is to our clients not to broader principles. And, on behalf of those clients, we believed it was most critical to win the battle for habeas. But, in the end, the extensive focus on habeas had costs for our clients as well as for those principles.

Perhaps it would not have mattered. Perhaps we obtained all we could have from the courts and that, by insisting on more, we would have wound up with less. But we should have tried. In the battle over Guantánamo, habeas lawyers remain to some extent the victims of our own success.