Balkinization  

Wednesday, May 02, 2007

Why Closing Guantánamo Might Not be Such a Good Idea

Marty Lederman

Because the alternative would likely be worse -- far, far worse.

Moreover, the odds that Congress and/or the Court will ever recognize habeas rights and oversee U.S. treatment of detainees at Bagram are steeper -- by a long stretch -- than the possibility of oversight and reform at GTMO.

Of course, if the GTMO detainees were transferred to the United States -- as the Secretaries of Defense and State have recommended -- then the application of due process for them would be fairly incontrovertible. But that's exactly why the Vice President and DOJ are so opposed to such a move -- because their principal objective is to ensure that there is no oversight or review of U.S. interrogation practices. As the New York Times' sources explained, "[t]here is widespread agreement [within the Administration] that moving any detainees or legal proceedings to American territory could bring significant complications. Some administration lawyers are deeply reluctant to move terrorism suspects to American soil because it could increase their constitutional and statutory rights."

For this reason, closing GTMO would much more likely result in more detainees being held in facilities closer to the actual "battlefield," such as Bagram, rather than in domestic faciltiies. And as I wrote in this space last year, that would hardly improve matters from a legal or human rights perspective.

Moreover, if GTMO were closed, more of the detainees there might be transferred to nations such as Libya, where there is a real risk that they may be tortured. According to an argument made by the Solicitor General yesterday, the MCA precludes all court jurisdiction to consider a claim that such a transfer would be unlawful (e.g., as a violation of Article 3 of the Convention Against Torture) -- not even D.C. Circuit review would be available for this sort of wrongful transfer claim. After receviing the SG's brief, the Court denied the detainee's application yesterday without dissent, and therefore he will likely be transferred to Libya very soon -- more from Lyle Denniston here.

All of which is to suggest that although "Close GTMO Now" might be an understandable sentiment, it doesn't answer the question: What then? A better idea would be for Congress to require that due process and some form of meaningful judicial review be provided at GTMO and at other detention facilities around the globe.

UPDATE: To similar effect, Diane Marie Amann expresses some concerns here about Senator Feinstein's well-intentioned recent proposed legislation that would require closure of the facilities at GTMO.

Comments:

The notion that we would move detainees closer to "the battlefield" in an effort to "legitimize" stripping them of their rights is nothing short of obscene.

Be clear, in the middle of a fight, guns blazing, bullets flying, captured folks aren't going to get much in the way of rights. But to stretch as we have to say, "Well, bullets are still flying somewhere so we can treat these guys like we're still on the field" is, again, nothing short of obscene.

There are alternatives provided when the rule of law and access to formal courts is unavailable in the literal sense of courts not being convened because unrest has so thoroughly disrupted the government. But the Bush administration, and the nation of sheep it has successfully herded for the past six years, turns this idea on its head, so that access to the courts and due process is deemed unavailable to detainees even though our courts are sitting and our congress is convened and said detainees are thousands of miles away from the field.

The question remains, what do we do about it? As Professor Lederman points out, it's not enough to say "Close GITMO". We must instead demand a re-opening of the rule of law, and an end to the arguably faithful in letter but undeniably rapacious in spirit approach to law practiced by this administration.
 

Professor Lederman:

You are one of a handful of proponents to extending constitutional rights to alien captures who has observed (correctly in my opinion) that the alternatives to Gitmo are far worse for your cause.

However, there are strong indications that the CIA and the military are no longer using Gitmo as a detention center for new captures unless they are being sent for a military tribunal.

The CIA revealed that they are still running detention centers for high value captures by recently transferring one to Gitmo for trial.

Gitmo has not been receiving captures from Iraq and Afghanistan, so we must assume that they are being kept locally.
 

"Bart" DePalma:

However, there are strong indications that the CIA and the military are no longer using Gitmo as a detention center for new captures unless they are being sent for a military tribunal.

They weren't before (for the big names, at least).

The CIA revealed that they are still running detention centers for high value captures by recently transferring one to Gitmo for trial.

Wow. You mean Dubya's maladministration lied to us once again? I'm shocked ... shocked.

So much easier torturing folks when there's no one looking.

Cheers,
 

L.S.,

Looking at US constitutional law as a legally schooled outsider, I'd just like to reiterate how strange it is that applying the law to GITMO apparently leads to the result that the rights these prisoners have depends, to some extent, solely on choices that can be made by the other side in this legal conflict, the federal government. It's equivalent to having the defendant in a tort suit decide whether or not the plaintiff can subpoena certain evidence. I would imagine that the courts would try their best to avoid such a result, purely on principle if for no other reason. Presumably the easiest way to do this would be to let the prisoners' habeas rights depend solely on whether or not they are within the exclusive power of the United States. (Or whether some other government also has something to say about their treatment, interrogation, etc.)

Anyway, sorry to bring up such an old issue again, it's just that this mess irks my sense of what an "ars aequi et boni" should demand at the very least...
 

martinned: I would imagine that the courts would try their best to avoid such a result, purely on principle if for no other reason.

All such principles have long since been abandoned by the Cheney/Bush junta in favor of the principles spelled out at PNAC. That PNAC principles just happen to line the pockets of Bechtel and Haliburton is mere happenstance.

There is no news in any of this. We've been watching the moral decline of the U.S. for six years now under this adminstration's opportunistic exploitation of the September 2001 attacks. The only principle in the preamble of the Constitution which holds sway today is "provide for the common defense", and even that one is twisted and perverted beyond all logic and recognition, such as claiming that, as I mention in my prior comment, detainees are not due due process despite the government being in full force and those detainees being thousands of miles away from the conflict. There is no reason to deny the basic human rights and due process of law to any of our prisoners.
 

Bart: ...alternatives to Gitmo are far worse for your cause.

Bart, you lying, cowardly cheat, as a member of the Bar, as a member of our armed forces sworn to defend our Constitution, as a Christian, it is your cause as well as Professor Lederman's, the cause of Justice, the cause of Freedom, and certainly the cause of defending our nation's most sacred values. It's your cause too, and you are blowing it.
 

robert:

You are partially correct. My duty as a member of the military and now the bar is to uphold the Constitution, not to rewrite it. Indeed, part of my duty in upholding the Constitution is to speak out against attempts to rewrite it by judicial fiat rather than by the amendment process provided in the document.

It is interesting that you should bring up this subject now. The president of our state bar association just published an op-ed making the argument that attorneys have a duty to argue that the Constitution extends habeas corpus to the Gitmo detainees. I am will be sending off a letter to the editor today in response to this wrongheaded view.
 

"Bart" DePalma says:

You are partially correct. My duty as a member of the military and now the bar is to uphold the Constitution, not to rewrite it. Indeed, part of my duty in upholding the Constitution is to speak out against attempts to rewrite it by judicial fiat rather than by the amendment process provided in the document.

But you claim you did just that (see also here), "Bart", and never answered my question as to how you could argue such.

Are you ever going to answer this question, "Bart"? ... Oh, yeah, right, silly me, I'm asking "Bart" to explain his hypocrisy....

Cheers,
 

I, for what it's worth, have long thought that closing Guantanamo is not a solution. Rather, the people in charge should be fired (or at least transferred to positions that have nothing to do with prison management) and replaced with outspoken opponents of the abuses there.
 

Bart: ...part of my duty in upholding the Constitution is to speak out against attempts to rewrite it...

Stick to the topic, you lying, cowardly cheat. The topic is the kinds of half-truths this administration so loves, the kinds that let it say the courts are unavailable to detainees despite the government being in full working order, the courts being convened, the detainees being thousands of miles away from the battle. You know full well such arguments are wrong on their face. Closing Gitmo, as Professor Lederman says, is not enough. Putting an end to such specious reasoning in support of illegal and immoral acts is what needs doing. There is no reason to deny the basic human rights and due process of law to any of our prisoners while the government runs, the courts sit, and said detainees are thousands of miles away from the field. To deny those rights under such circumstances may, as slavery once was, even be legal, but it will never be moral, never be Christian, never be right. Address that topic, please, or keep your yap shut.
 

L.S.,

I know that the Great Writ was traditionally reserved to subjects of the realm, but still I thought it might be interesting to quote the Habeas Corpus Act of 1679:

XII. And for preventing illegal imprisonments in prisons beyond the seas; (2) be it further enacted by the authority aforesaid, That no subject of this realm that now is, or hereafter shall be an inhabitant or resiant of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed, shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands or places beyond the seas, which are or at any time hereafter shall be within or without the dominions of his Majesty, his heirs or successors; (3) and that every such imprisonment is hereby enacted and adjudged to be illegal; (4) and that if any of the said subjects now is or hereafter shall be so imprisoned, every such person and persons so imprisoned, shall and may for every such imprisonment maintain by virtue of this act an action or actions of false imprisonment, in any of his Majesty's courts of record, against the person or persons by whom he or she shall be so committed, detained, imprisoned, sent prisoner or transported, contrary to the true meaning of this act, and against all or any person or persons that shall frame, contrive, write, seal or countersign any warrant or writing for such commitment, detainer, imprisonment or transportation, or shall be advising, aiding or assisting, in the same, or any of them; (5) and the plaintiff in every such action shall have judgment to recover his treble costs, besides damages, which damages so to be given, shall not be less than five hundred pounds; (6) in which action no delay stay or stop of proceeding by rule, order or command, nor no injunction, protection or privilege whatsoever, nor any more than one imparlance shall be allowed, excepting such rule of the court wherein the action shall depend, made in open court, as shall be thought in justice necessary, for special cause to be expressed in the said rule; (7) and the person or persons who shall knowingly frame, contrive, write, seal or countersign any warant for such commitment, detainer or transportation, or shall so commit, detain, imprison or transport any person or persons contrary to this act, or be any ways advising, aiding or assisting therein, being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within the said realm of England, dominion of Wales, or town of Berwick upon Tweed, or any of the islands, territories or dominions thereunto belonging; (8) and shall incur and sustain the pains, penalties and forfeitures limited, ordained and provided in and by the statute of provision and praemunire made in the sixteenth year of King Richard the Second; (9) and be incapable of any pardon from the King, his heirs or successors, of the said forfeitures, losses or disabilities, or any of them.
 

I understand that this is largely a legal blog, not a foreign affairs forum, but I think the most important point is being missed here -- the next president and/or Congress should close Gitmo immediately for the symbolic value this action will have around the world. Wherever the prisoners at Gitmo are moved -- whether to the U.S. court system, where they will be afforded rights (as they should be), or abroad, where they will "disappear" (which is morally wrong and legally dangerous) -- in the short term, from a national security and international relations viewpoint, closing Gitmo the day the current president leaves office is a must. No other place or object functions so perfectly as a symbol of America's (partly true, partly imagined) slouch into corruption and torture as Gitmo. Its shut-down will announce to the rest of the world that the U.S. is breaking with the worst of its post 9/11 torture and detention policies (whether that is actually true or not).
 

joshua:

[I]n the short term, from a national security and international relations viewpoint, closing Gitmo the day the current president leaves office is a must.

How about a compromise: We close Gitmo the day we tar and feather the current preznit and veep and ride them out of town on a rail? That might show more seriousness of purpose and willingness to change.

Cheers,
 

Bart...

As a former cavalry soldier, moderate Republican and prospective law student in the not too distant future, I can say your statements and attitudes have given me an excellent example of what to avoid. I have lurked here for months and read your misleading, spiteful and inane defenses of torture, rendition, extraordinary executive powers and so on. Honestly, I had wondered at times if your comments were an attempt at trollish parody...but it became obvious that you were truly wed to the notion that with this administration, might makes right.

In the end, all I see with you is an utterly unprincipled and Machievellian will to abuse the law in order to serve power.
 

@celticdragon: Welcome, congrats on de-lurking, and I look forward to you occasionally handing me my hat. Dissent and dispute can yield results superior to mono-culture, and a credible voice from elsewhere in the trench is a blessing.
 

Thank you for the generous welcome, Robert. I'm glad to be here. I doubt I'll be handing you your hat anytime soon, though...
 

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