Before the terrorist attacks on September 11, 2001, there were only two ways of holding prisoners — either they were prisoners of war, protected by the Geneva Conventions, or they were criminal suspects, to be charged and subjected to federal court trials.
That all changed when the administration of George W. Bush threw out the Geneva Conventions, equated the Taliban with al-Qaeda, and decided to hold both soldiers and terror suspects as “illegal enemy combatants” who could be imprisoned indefinitely without charge or trial, and with no rights whatsoever.
The Bush administration’s legal black hole lasted for two and a half years at Guantánamo, until, in Rasul v. Bush in June 2004, the Supreme Court took the unprecedented step of recognizing habeas corpus rights for prisoners seized in wartime, recognizing — and being appalled by — the fact that the administration had created a system of arbitrary, indefinite detention and that there was no way out for anyone who, like many of the prisoners, said that he had been seized by mistake.
That was not the end of the story. The Bush administration fought back, Congress attempted to strip the prisoners of their habeas rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF), and the Supreme Court had to revisit the prisoners’ cases in June 2008, in Boumediene v. Bush, reiterating that prisoners have habeas corpus rights, and that those rights are constitutionally guaranteed.
Although this ruling enabled some of the Guantánamo prisoners to secure their release through the U.S. courts, which granted their habeas corpus petitions, unfortunately the appeals court in Washington, D.C. (the D.C. Circuit Court), has been fighting back, gutting habeas corpus as a remedy by insisting that the government’s evidence, however obviously unreliable, should be given the ludicrous presumption of accuracy.
While the battle over habeas corpus continues to be fought, the bigger problem is that the entire rationale for Guantánamo has never been adequately challenged. The basis for holding prisoners is the Authorization for Use of Military Force, passed the week after the 9/11 attacks. It authorizes the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
In June 2004, while recognizing the Guantánamo prisoners’ habeas rights, the Supreme Court also confirmed, in Hamdi v. Rumsfeld, that the AUMF allows prisoners to be detained until the end of hostilities, thereby confirming the AUMF as an alternative to the Geneva Conventions. No one in a position of authority is required to explain why the Geneva Conventions no longer apply to soldiers or why terror suspects are being held as “warriors,” rather than as criminals.
With that fundamental misconception — or that warped reshaping of the rules governing detention — which was at the heart of the Bush administration’s “war on terror,” and which is confirmed in the continued reliance on the AUMF by all three branches of the government, it is no wonder that it has become impossible to even mention the fact that wartime detentions used to accord with the Geneva Conventions. It has also become impossible for advocates of federal court trials for criminals to win out over those calling for military commission trials instead, even though hundreds of terror suspects have been successfully prosecuted in federal courts in the last ten years, as opposed to just six in military commission trials.
The result of this unilateral rewriting of the rules governing wartime detentions is that soldiers remain held at Guantánamo, where they are lazily, but dangerously regarded as terrorists, and the wartime prisoners held in actual combat zones — at Bagram, for example — are not held according to the Geneva Conventions. Rather, they are detained arbitrarily and are then subjected to invented review boards so that the military can decide what to do with them. That ought to be a cause for alarm, but it is apparently taken for granted.
Moreover, the result of the insistence that terror suspects must not be tried in federal courts has had far-reaching effects that, in the last few weeks, have been causing great consternation to libertarians and liberals alike.
On the face of it, their consternation is well-founded. In provisions inserted by Congress into the 2012 National Defense Authorization Act, lawmakers insisted on creating legislation that makes it mandatory for terror suspects to be held in military custody, without charge or trial, and not to be allowed anywhere near the federal court system.
The mere fact that lawmakers could have worked themselves up into enough of a frenzy to pass that legislation is profoundly depressing, of course, but as Marty Lederman and Steve Vladeck explained in an article for the Lawfare blog on December 31, intense negotiations between the administration and Congress, with input from numerous deeply concerned groups and individuals, succeeded in watering down the intent behind the provisions, so that it is not really appropriate for critics to wail that the NDAA will allow Americans to be held indefinitely in military custody. As they explain,
[Section] 1022 purports to establish a presumption in favor of indefinite military detention, rather than criminal arrest and prosecution, for some future foreign al-Qaeda suspects. In the President’s words, it is in this respect “ill-conceived and will do nothing to improve the security of the United States,” and “is unnecessary and has the potential to create uncertainty.” Fortunately, amendments adopted late in the legislative process … will, we think, ensure that section 1022 is mostly hortatory, and will in practice allow the President to adhere to his commitments that “suspected terrorists arrested inside the United States will — in keeping with long-standing tradition — be processed through our Article III courts, as they should be”; that “our military does not patrol our streets or enforce our laws — nor should it”; and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”
Even so, as Marty Lederman and Steve Vladeck also explained, drawing on comments made by Raha Wala of Human Rights First, “the very existence of section 1022 might give a future Administration a slight measure of political cover if it decides to reverse President Obama’s policy and begin to detain in military custody persons such as another Abdulmutallab, who are captured in the United States.”
The reference is to Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, whose recent trial and successful conviction confirmed that the advocates for military custody are driven not by common sense but by irrational fears — or cynical fear-mongering. The courts are perfectly capable of safely and effectively prosecuting terror suspects, and lawmakers’ attempts to insist otherwise, if left unchallenged, are likely to be dangerously counterproductive rather than helpful.
Nevertheless, while obvious disaster appears to have been averted, the huge outpouring of alarm regarding the perceived plan to imprison Americans indefinitely without charge or trial ignores two fundamental issues that still need to be addressed: first, that Barack Obama has shown himself more than willing to dispose of U.S. citizens he regards as troublesome not by imprisoning them, but by assassinating them in drone strikes; and, second, that the foreign victims of the indefinite detention that lawmakers have shown themselves so desperate to revive still need Americans to care about their plight, to bring to an end the unjust situation that has existed for the last ten years, and to cut off the possibility that lawmakers, or the executive branch, can decide in the future to revisit these dreadful policies and to revive them again.
As Marty Lederman and Steve Vladeck noted, drawing on an article in the New York Review of Books by David Cole,
David Cole is surely correct that Subtitle D (“Counterterrorism”) [PDF] of the NDAA contains some very troubling provisions — especially sections 1026 and 1027, which continue the deeply unfortunate and counterproductive authorities in current law prohibiting the use of funds to build a facility in the U.S. to house GTMO detainees and to transfer any such detainees to the U.S. for any reason, including criminal trial; and section 1028, which continues the current statutory requirement that the Secretary of Defense must make onerous certifications regarding the receiving nation’s security measures before any GTMO detainee can be transferred to another country. These provisions will continue to prevent the closure of the detention facility at Guantánamo, notwithstanding the President’s view, which we share, that “the prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.”
Those are valid points indeed, and with the tenth anniversary of the opening of Guantánamo taking place next week, it is important for U.S. citizens to recall that the fount of the recent hysteria directed, initially, at Americans as well as foreigners, is the enduring legacy of the Bush administration at Guantánamo, where these dark actions have been inflicted on foreign Muslims for the last ten years, and where the will to close this dangerous aberration is lacking in both the administration and in Congress.