Clinton's Guantanamo.

The law, lawyers, and the court.
Dec. 21 2005 3:20 PM

Clinton's Guantanamo

How the Democratic president set the stage for a land without law.

(Continued from Page 1)

Was the Clinton effort to vacate the Haitian case central to the Bush administration's decision to reopen Guantanamo as a detention camp? No. Certainly, any ruling that the due process clause applies to foreigners on Guantanamo would have been a thorn in the administration's side, and lawyers for the detainees would presumably have relied on it in brief after brief. But even if the Haitian precedent were still on the books, it probably would have had little influence on the White House. It was, after all, only a trial court ruling, meaning no higher federal court would have been bound by it. So, the Bush administration could simply have argued that the case was wrongly decided and need not be followed. As events actually played out, the Justice Department's 2001 legal memo focused largely on a couple of Supreme Court cases—particularly the Johnson v. Eisentrager ruling about German war criminals held by the United States in Europe—in predicting that the court would give the back of its hand to detainees held on Guantanamo.

The great irony is that both the Bush administration in 2001 and the Haitians' lawyers in 1993 seem to have guessed incorrectly about the Supreme Court. Indeed, a majority of the justices apparently agree with the district court in the Haitian case that at least some elements of the Constitution apply on Guantanamo. In 2004, the court ruled in Rasul v. Bush that terrorist suspects confined at Guantanamo do have the right to challenge their detention (under the federal habeas corpus statute). And in a striking footnote that may be the most important part of the opinion, the court wrote that it is "unquestionably" a "violation of the Constitution or laws or treaties of the United States" to use Guantanamo to indefinitely detain people who aren't trying to blow us to pieces. In short, President Bush cannot lock up people on Guantanamo based on unsubstantiated claims that they're terrorists, and President Clinton shouldn't have warehoused innocent HIV-positive Haitians there, either.

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The Haitian case may have predicted the views of a majority of the justices, but its real impact—had it remained on the books—wouldn't likely have been in court. Rather, it would have been in the broader public debate it could have sparked. Media coverage about the precedent might have ensured that the ugly history of a Guantanamo without legal constraints—Bill Clinton's Guantanamo—became part of the national discussion. And the broadly debated cautionary tale of what went wrong there more than a decade ago might have helped rein in our current leaders before so many mistakes were made. As it was, though, Clinton lawyers got the case wiped off the record—and unfortunately, it seems, from our collective consciousness.

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