an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Attorney General Eric Holder’s announcement Friday that Khaled Sheikh Mohammed and four other individuals allegedly responsible for the 9/11 attacks would be brought to trial in federal court takes an important—if long overdue—step towards restoring the rule of law. No longer are these men “high value detainees,” a label invented out of whole cloth to sanction their previous disappearance into a secret CIA prison and torture. After resurfacing at Guantánamo in September 2006, they are now, finally, defendants in the U.S. criminal justice system, which has shown repeatedly that it is well-equipped to handle terrorism cases while protecting legitimate national security concerns. This was the result advocated by the ACLU’s John Adams Project, and it is a welcome one.
But at Guantánamo, the road to justice remains the road less traveled. Holder also announced that five other Guantánamo detainees would be referred back to military commissions, including Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole. So, those accused of the 9/11 attacks go to civilian court, while those accused of other crimes are diverted to military commissions. Yes, al-Nishiri is accused of attacking a military target. But the attack occurred before the United States was engaged in any armed conflict and before the passage of the Authorization for Use of Military Force that the U.S. has relied on for the claimed armed conflict against al Qaeda. (In Hamdan, Justice Stevens described such retroactive use of military commissions as “insupportable”). As Deborah Pearlstein points out , the administration has failed to provide a consistent, let alone valid, legal theory why one case goes to a military commission and another to federal court—why one prisoner gets full due process in a federal trial while another receives due process lite in a refurbished commission. Military commissions may have a place in the limited circumstances of true necessity—where the civilian courts are not open, functioning, and capable of dispensing justice. But military “necessity” is not an excuse for the government to deviate from its regularly constituted courts because it lacks the evidence to convict. And even if that were not the reason (or the only reason) for using military commissions, it will be the enduring perception of America’s two-tiered system of justice.
Holder’s announcement, moreover, deals only with one slice of Guantánamo. In the eight years since President Bush first created military commissions, only three men have been tried by these supposed “war courts.” By contrast, more than 750 have been detained without trial and more than 200 remain in legal limbo. Military commissions have helped mask a much larger system of prolonged and indefinite detention without charge. This open-ended detention system has been one of the most brutal, arbitrary, and lawless aspects of Guantánamo. (More than a hundred lawyers for detainees have now described its inside workings in a collection I’ve co-edited with Mark Denbeaux, “The Guantánamo Lawyers: Inside a Prison, Outside the Law (NYU Press). The Obama administration, however, has suggested that this system of indefinite detention will continue even after Guantánamo is closed and its remaining prisoners moved to another facility.
Under Boumediene¸ Guantánamo detainees now have a constitutional right to habeas corpus. But habeas hearings are not criminal trials, and those whose military detention is approved by a habeas judge face the prospect of confinement without end. Indeed, under current law even those who win their habeas hearings will remain imprisoned if the United States cannot repatriate them since judges are powerless to order their release into the United States. (This is the question the Supreme Court will hear this term in Kiyemba).
As long as the present menu of options for dealing with terrorism suspects remains in place, U.S. detention policy will remain essentially lawless. The government will be free to use federal courts when it is confident it can convict; employ military commissions if it has doubts about the strength of its evidence or faces other obstacles; and dispense with a trial altogether where its case is weakest. Welcome to Guantánamo 2.0.