Judicial Second Guessing and the Guantanamo Detainee Decision

I can’t resist weighing in on the Guantanamo decision again, although I agree with Peggy’s analysis yesterday. I think the decision is a defeat for the government (per Andreas) and that it moves beyond existing precedent and certainly beyond past practice. That does not mean it will be reversed, but it is certainly pushing the envelope of judicial review of military activities overseas a great deal farther than one could have imagined just 3 years ago.

Under the court’s decision, a non-citizen on any U.S. military base or property worldwide could go to U.S. federal court to claim Fifth Amendment and/or Geneva Conventions rights to challenge the President’s factual determinations made pursuant to a statutory delegation by Congress.

Perhaps U.S. abuses in the war on terrorism require this shift from past practice, but we should recognize that we are indeed moving into a different world here.

The bulk of the decision relies on the due process clause of the Constitution (in the Fifth Amendment) to analyze and ultimately reject the adequacy of the Combatant Status Review Tribunals (CSRTs) created by the Defense Department after the Supreme Court’s decisions last year. The decision also relies, to a lesser degree, on the Geneva Convention’s requirement of a neutral tribunal for determining POW status. But, as Peggy points out, the rest of the claims, including violations under customary international law, were dumped. Which reminds us that judges will always prefer constitutional or treaty arguments to fuzzier customary international law arguments.

The Due Process analysis requires a couple of steps that may be attacked on appeal. First, it extends Due Process constitutional protections to Guantanamo Bay, whereas the Rasul decision last year in the Supreme Court relied on statutory interpretation to extend habeas jurisdiction. The question of what constitutional rights are provided to non-citizens outside of the U.S. is a murky and complicated one and the district court moved farther than previous doctrine has provided. The judge relies heavily on the idea that Guantanamo is essentially U.S. territory, but I’m not sure I see an easy distinction between Guantanamo and, say, Bagram Air Base in Afghanistan or any U.S. military base leased overseas. In any event, if I represented an Afghan or Iraqi detainee held on a U.S. military base anywhere in the world, this court’s reading of Rasul will permit me to claim, quite credibly, that I have due process rights. This may very well be a good idea, but it is also unprecedented. It is a sign of how far we have come that German detainees in Johnson v. Eisentrager were essentially laughed out of the Supreme Court, even after the war ended, whereas detainees in this ongoing conflict will get due process.

Second, although I am sympathetic to the Judge’s view that the CSRTs are fundamentally unfair because they fail to allow a detainee access to classified information to challenge their status, I’m not sure how to solve this problem. Obviously, there are reasons to classify such information, just as obviously, the detainee needs access. I’m not sure the judge’s solution (give it to the lawyers) is such a great one.

In any event, the judge also found that the definition of “enemy combatant” was overly broad because it was not limited to individuals “engaged in armed conflict” against the U.S. but included anyone associated with Al Qaeda and/or the Taliban. Again, this is a reasonable determination, but it is also a remarkable departure from past practice. FDR had no problem (and neither the WWII Supreme Court) with hanging 6 enemy combatants in 1944 (see Ex Parte Quirin) who had allegedly plotted to bomb the Long Island Railroad and no one even really bothered to define enemy combatant in those cases.

One more note: the court found that the Geneva Conventions are self-executing and required the President to provide a neutral and case-specific decisionmaker to allow Taliban individuals to seek POW status. No blanket declaration by the President as to the Taliban’s status sufficed. This sounds sensible, but usually courts give the President some deference in his interpretation of the Geneva Conventions. No deference was provided here. Moreover, the Court did not really grapple with the important question of self-execution. No doubt the Geneva Conventions are “self-executing” in the sense that they did not require any implementing legislation. But it is plausible, even likely, that the President and Senate believed that the treaty would be implemented entirely by the President and the military without any private right of action in the courts. No serious analysis of this question was undertaken here. And there might be good policy reasons for leaving that implementation to the President. One possibility: Country X, our opponent in the war and Geneva Convention signatory, declares that all U.S. soldiers are not POWs. Is it necessarily true that the President continues to be bound by the Geneva Convention and cannot issue a reciprocal blanket declaration?

In the end, I agree with Andreas that this is a defeat for the government. And I think the court revealed some damning evidence about possible torture and unfair treatment of Gitmo detainees. So I think the result in these cases are not the end of the world for the war on terrorism and quite possibly a necessary check on executive abuses. On the other hand, this decision shows us that we are heading toward a world of judicial review of presidential military determinations, even determinations made pursuant to a resolution by Congress authorizing him to use all necessary and appropriate military force. The fact that this delegation by Congress to the President involves the military and foreign affairs doesn’t matter as much as it would have to courts in the past.

This is a brave new world and I wonder if we are ready for its consequences.