Camp fire.

Camp fire.

Camp fire.

The law, lawyers, and the court.
May 9 2006 6:17 PM

Camp Fire

Guantanamo Bay isn't necessarily a law-free zone.

Guantanamo Bay prisoner
Click image to expand.
Guantanamo Bay prisoner

This weekend, President Bush pulled something of a Ruth Bader Ginsburg by detonating a major domestic news-bomb in a foreign country. He told a German television interviewer that everyone at Guantanamo deserves a day in court, and his goal is to close the camp:

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

I very much would like to end Guantanamo; I very much would like to get people to a court. And we're waiting for our Supreme Court to give us a decision as to whether the people need to have a fair trial in a civilian court or in a military court.

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His statement was surprising for several reasons, not least because it represents a major reversal from prior policy statements about the camp. While the president has suggested that he was open to rethinking the camp, as recently as January Bush insisted—in response to German Chancellor Angela Merkel's demands that he shut the camp down—that "Guantanamo is a necessary part of protecting the American people and so long as the war on terror goes on ... we will inevitably need to hold people that would do ourselves harm." And only last February Defense Secretary Donald Rumsfeld told the Council on Foreign Relations, "Every once in a while someone pops up and gets some press for saying 'Oh let's close Guantanamo Bay.' Well, if someone has a better idea, I'd like to hear it." Apparently Bush has a better idea.

Still, work continues on a state-of-the-art $30 million prison, under a contract awarded to a Halliburton subsidiary, which is slated to open this August. And the unofficial administration policy of quietly releasing dozens of former prisoners without charges, comment, or explanation seems to be working just fine. The Pentagon has raised the possibility of another mass release of 140 prisoners who can no longer be classified as "enemy combatants." That would leave only about 350 remaining on the base. Approximately 250 detainees have been released since the camp was re-established in 2002. At this release rate, Guantanamo might be totally empty by 2042, without the government ever admitting a mistake.

These silent mass releases do suggest that Donald Rumsfeld's famous 2002 claim, that the then-760 prisoners at Guantanamo were "the worst of the worst," was something of an overstatement. They were probably closer to "the best of the worst," or as I've suggested, "the least lucky of the middling." The actual worst of the worst have been relegated to a whole other secret prison system that actually makes Guantanamo look rather attractive.

It's not an accident that Bush's Guantanamo statement came while he was in Europe. While the camp is rarely, if ever, A1 news in this country, it has remained on the front pages in Europe and Asia for years—a symbol of American arrogance and intransigence. Bush's staunchest allies—from Chancellor Merkel to Tony Blair—have publicly broken with him on the issue of the camp, and Bush's insistence that there has been no torture there rings more hollow with each human rights report. Yesterday's discussion of American water-boarding before the U.N. Committee Against Torture (apparently it's now officially prohibited in the new Army field manual) is a national embarrassment.

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But if Bush's plan to close the camp turns, as he suggests, on the Supreme Court's upcoming decision in the Hamdan case, the fate of the remaining Guantanamo prisoners is hardly clear. His observation that the court will shortly be deciding "whether the people need to have a fair trial in a civilian court or in a military court" is wrong, for one thing. The Supreme Court has long conceded that when dealing with enemy combatants, something short of a complete civilian trial, with the full panoply of constitutional rights, is permissible. The big issues in Hamdan v. Rumsfeld are about the legality of the president's military tribunals themselves: whether the Detainee Treatment Act of 2005 strips the Guantanamo detainees of their right to bring habeas corpus claims in federal court; and whether these special military commissions violate rights protected under the Constitution and international law.

Since only 10 of the hundreds of prisoners at Guantanamo have ever been charged under these commissions, it's awfully hard to believe that the legality of these tribunals is the deciding factor in whether or not Guantanamo continues to operate. Moreover, the Pentagon has said that, at most, 75 future detainees might stand trial under these tribunals. So, why are almost 400 other prisoners being held hostage to a decision about the legality of these commissions?

It's unlikely that the president actually plans to try all the remaining Gitmo detainees before military tribunals, even though that seems to be the implication of his comment. If that really were the case, the camp would be around for decades. In more than four years, the tribunals have yet to return a decision. And the existing evidence against most of the detainees is negligible—even under the low standards needed for the tribunals. So, if he doesn't plan to try them, what does the president hope to do with the remaining detainees? Does closing the camp mean simply sending them home? "Rendering" them somewhere else for more effective interrogation? Moving them all to the United States for military or civilian trials? Or disappearing them into our own secret prisons in Afghanistan or Iraq or wherever? Whether this Guantanamo announcement is good news or bad news depends on the alternatives.

The most important aspect of the president's comment isn't just that he acknowledged, at least tacitly, that Gitmo is a disaster and must be closed; or even that he acknowledged that detainees have a basic right to some adjudicatory process. These two concessions are momentous, but they pale next to his admission that he is in any way bound by the decision of the high court—that the court will have the last word on anything to do with the war on terror.

It's been this administration's contention from the start that what happens on Guantanamo is absolutely immunized from court review. That's been the blanket argument from the outset: It's the president's war and the courts and Congress have no role to play—short of lying down very quietly until Armistice Day. The president's newfound acceptance of the authority of the judicial branch may be nothing more than convenient political cover: He can close the camp and say the dumb court forced him to do it, just as the dumb court forced him to release Hamdi and to remove Jose Padilla to civilian court.

Still, with each new concession to the court's ability to constrain his decisions, the president admits that his views alone are not the law of the land. And as comforting as that prospect is to you, I can think of at least 480 prisoners in Cuba who may find it even more so.