Last June, the U.S. Supreme Court supposedly resolved the question of detainee rights for the hundreds of so-called "enemy combatants" warehoused at Guantanamo Bay, Cuba. In its 6-to-3 opinion in Rasul v. Bush, the court established conclusively that federal courts have jurisdiction to hear habeas corpus petitions from these prisoners in some fashion or other. But beyond that, Rasul probably raised more new questions than it answered. And it's becoming clear that litigating each word of every clause in every one of those questions may consume some of these prisoners' natural born lifetimes.
It's almost impossible to comprehend how, as of yesterday, two federal judges in the District of Columbia managed to read Rasul to mean two completely opposite things—as though it's one of those pick-your-own-endings books from the 1980s. Who is to blame? Obstructionist government lawyers? Activist judges? A tentative Supreme Court?
Well, how about D): all of the above?
Two weeks ago, on Jan. 19, Judge Richard J. Leon granted the government's motion to dismiss all the claims of seven Guantanamo detainees, based on his judgment that their petition was supported by "no viable legal theory." In Leon's view, Congress gave President Bush the authority to detain foreign enemy combatants, outside U.S. jurisdiction, for the entirety of the war against al-Qaida and the Taliban, and courts had no business second-guessing those determinations. He found that the "Combatant Status Review Tribunals," set up by the administration to comply with the Supreme Court's ruling in Rasul, were more than adequate, saying that they "provided each petitioner with much of the same process afforded by Article 5 of the Geneva Conventions." And he found—perhaps only a little disingenuously—that Rasul afforded petitioners the right to file habeas corpus petitions in federal courts but gave courts no power to grant the relief they sought. That Rasul,in his view, lets Guantanamo detainees file pointless papers for their own amusement is hard to accept. But not really harder to accept than the breadth of the ruling handed down yesterday by his colleague.
Judge Joyce Hens Green, apparently reading a completely different version of Rasul, ruled that the Guantanamo prisoners possess substantive and enforceable constitutional rights, even on Guantanamo. She then went beyond Rasul to find that the Combatant Status Review Tribunals are unconstitutional, and that the Geneva Conventions apply to at least some of the prisoners warehoused on the island. She unequivocally rejected the position that President Bush gets the final say on when and whether Geneva applies to prisoners and what rights enemy combatants may have. And she argued that evidence used against the detainees would be unreliable had it been procured through torture. And because everything in the law always comes down to a footnote, judges Leon and Green also disagreed fundamentally over whether a footnote in Rasul conferred actual rights on the Guantanamo detainees.
It's easy to blame partisan politics for the irreconcilable holdings by the two judges. Virtually every press account of the two decisions today is quick to point out that Leon was appointed by President Bush, whereas Green was appointed by Jimmy Carter. It's equally easy to blame partisan turf wars. Two different federal judges on the same court are deciding virtually identical issues because of an internal power struggle: Last September, the court's judges all designated Green as coordinator of the various proceedings in the multiple Guantanamo cases. In November, eight out of the nine judges on the court who'd been assigned such cases agreed to let Green alone decide the government's motions to dismiss. (The cases would then be returned to the original judges for trial if Green ruled that further trials were appropriate.) Judge Leon refused to go along with that plan, however, and took back control of his two Guantanamo cases. Just when attorneys for the detainees most need an unequivocal answer, two judges are doing battle over who has the biggest gavel.
And it's more than easy to blame the Justice Department, which sees Rasul, and the other seminal war-on-terror case, Hamdi v. Rumsfeld, through the sophisticated legal prism known as the Toddler Worldview: Anything one doesn't wish to accept simply isn't true. Lyle Denniston explained this trial tactic last December. It consists of insisting, over and over in every filing and argument, that Rasul and Hamdi constituted sweeping victories for the government's inviolate pre-Rasul and pre-Hamdi positions. The government still reads these cases to mean that the administration has unfettered authority to label and detain enemy combatants, to warehouse them indefinitely, and to offer them the most glancing brushes with military-style "due process." Judge Green specifically objected to the use of classified evidence and the lack of meaningful counsel at the status review tribunals, and she paints a truly chilling picture of the Kafka-esque "hearing" of Mustafa Ait Idr—who kept begging his judges to simply tell him the name of the al-Qaida member he was alleged to have conspired with.
But while we are laying blame here, it may be worth considering that the Supreme Court bears the most responsibility for not getting Rasul right—or at least clear—the first time. The opaque John Paul Stevens opinion, coupled with Anthony Kennedy's concurrence (which at least implies that military tribunals might provide sufficient due process for these prisoners), are ambiguous enough to allow the government and judiciary to play the kinds of semantic chutes and ladders it now plays. And the court's refusal to grant certiorari in a subsequent terror case has compounded the problem. No one opposes judicial restraint or minimalism; judges should decide only the matters directly before them. But when the highest court in the land only half decides a matter squarely before it—when it decides that prisoners languishing for years in detention have certain inalienable-rights-to-be-named-later, it's tantamount to having decided nothing at all.
Justice Stevens' most soaring language in Rasul—that being "held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing—unquestionably describe 'custody in violation of the Constitution or laws or treaties of the United States,' " should have comprised his first paragraph. Instead, it's buried—apparently along with hundreds of Guantanamo detainees—in his final footnote.