It may help make sense of the issues in today's cases involving the detainees in Guantanamo Bay to consider them this way: The two consolidated cases— Rasul v. Bush and Al Odah v. United States —have never been adjudicated on the merits. That's lawyer-speak meaning that no court has ever determined whether these 600-plus foreign nationals are terrorists, or enemy soldiers, or jars of olives. The Supreme Court isn't being asked to make that determination today either. It's merely being asked whether some U.S. court can do so. That's all habeas corpus really means—do you have the right to put your foot inside the courthouse door? It's also useful to recall that these issues were not decided at trials. The district court and the D.C. Circuit Court of Appeals dismissed these cases without getting to the merits, believing they lacked jurisdiction to hear them. In order to dismiss these cases, those lower courts needed to assume that the facts as alleged by the prisoners are all true: They are innocent; none fought against the United States; and that for legal purposes, these detainees are a bunch of nuns and Eagle Scouts. The result, held the courts, is still the same: No day in court for non-citizen enemy combatants held outside the United States.
Let's also suck it up and get to Eisentrager. That's Johnson v. Eisentrager—the Supreme Court case from 1950 that will dictate the outcome of today's hearing. Why are we acting like the Yale English department in the 1980s and tripping all over ourselves to deconstruct the inner meanings of an ambiguous decision about German spies in World War II? Well, because that's the beauty of our legal system. You cast about for the best precedent you can find and then hew to its dictates, lame and antiquated though they may be.
The cases today were brought by family members of 16 detainees, who are citizens of Australia, Britain, and Kuwait, which countries are not presently at war with the United States. (Although some British Parliamentarians are pretty irked.)
Another oddity of today's argument, which—thanks to the intermittent democratic impulses of the high court—you can listen to here and here, is that it just isn't very good. On both sides there's some extreme positioning, some backpedaling and fudging. Argument opens with John Gibbons, a former 3rd Circuit Court of Appeals judge who lends gravitas to the day by looking like Justice John Paul Stevens. Gibbons calls Camp X-Ray at Guantanamo a "lawless enclave, insulated by the executive from any scrutiny now or in the future."
Chief Justice William H. Rehnquist stops him, pointing out that the appellants in this case have been detained for two years, but "suppose it was only six months. Does that weaken your case?" When Gibbons says no, Justice Anthony Kennedy asks if the result would have been different if they'd only been detained for weeks. His worry, expressed several times today, is that every enemy soldier captured on the battlefield will instantly be demanding an attorney.
Kennedy wants to know exactly which substantive rights, beyond the right to walk into a courtroom, should be conferred on detainees. "What is a judge supposed to do?" he asks. Gibbons tries to invoke rights conferred by the Geneva Convention, which just muddies the waters because this case doesn't much concern the Geneva Convention, as Rehnquist is quick to point out.
There is a lengthy discussion about whether Eisentrager was a decision confined to jurisdiction or a ruling on the merits of the World War II prisoners' claims. The truth is that the Eisentrager court sort of did both, and that fact wreaks some major mayhem today. Justice Stevens tries to throw Gibbons a lifejacket, then a buoy, and then his own shirt by pointing out that Eisentrager was decided in part based on a case that was substantially overruled since. Gibbons fights him until Stevens gives up.
Kennedy wonders again whether captured lawful combatants in a declared war also have a right to habeas corpus, and Gibbons says no, although his argument—that judges could just dismiss these claims—begs the key question: on what grounds?
Justice Stephen Breyer wonders whether the Geneva Convention couldn't be used to flesh out the basic due-process rights of detainees. Gibbons agrees. "You're not simply being polite?" asks Breyer.
Soon we get to the arguments about the difference between being on a battlefield and in Guantanamo, which the United States leases, but does not own. Here, the Bush administration argument is that a rental island is like a rental car: You can ding the bumpers and leave crap in the ashtrays since it's not yours. Rehnquist points out that the terms of the lease give "ultimate sovereignty" over Guantanamo to Cuba. Gibbons suggests that this is conditional. Justice Antonin Scalia gets him to admit he is mistaken.
Gibbons does make his point that the United States exercises de facto control over Guantanamo: "If one of the detainees here assaulted another detainee in Guantanamo, there's no question they'd be prosecuted under American law," he notes. It's sure as heck not Cuban law controlling there, he suggests, adding: "A stamp with Fidel Castro's picture on it couldn't get a letter off the base." Before he closes, Gibbons reminds the justices of the extreme implications of the administration's position, saying the executive branch has created in Guantanamo "a no-law zone, not accountable to any judiciary, anywhere."
Solicitor General Ted Olson then presents the president's side of the case. Nothing in his performance betrays the fact that his wife died on one of those planes, at the hands of terrorists just like the ones we may be holding at Guantanamo. Olson opens with a reminder that the United States is at war, that there are 10,000 American troops in Afghanistan today, and that Congress almost unanimously authorized the president to use "all necessary and appropriate force" against those who attacked us.
Stevens, who proves himself spryer than a young Christina Aguilera today, asks whether Olson would take a different position if the war were over. Olson says there would still be no jurisdiction. "So the war is irrelevant," says Stevens, highlighting the fact that the president's commander-in-chief powers seemingly have no "use by" date.
Justice Sandra Day O'Connor, whom everyone watches like a hawk today, again, asks whether there would be a different result if the detainees were Americans. Olson says he would acknowledge U.S. courts' jurisdiction over U.S. citizens. Souter goes back to whether Eisentrager simply decided that U.S. courts had no jurisdiction or whether it looked at the merits of the German prisoners' claims. Olson proceeds to read great swaths of the opinion since it remains his best argument.
O'Connor suggests briefly that she might distinguish Eisentrager. She notes that it seemed to reach the merits of the case, and, "These people had a trial."
Shortly thereafter, Olson starts to retreat from his claim that American detainees at Guantanamo could claim that U.S. courts have jurisdiction. Scalia helps Olson out by reminding him that citizens have constitutional rights that would allow jurisdiction. (All of this is throat-clearing for next week's Padilla and Hamdi cases, in which U.S. citizens are detained without charges).
Kennedy is unimpressed. "This is a prisoner, detained by the United States," he says, noting that this sounds like what's contemplated under the federal habeas statute. Justice Breyer thinks the court can find a middle ground between the two extremes of perpetual detention without oversight and sweeping rights for every enemy soldier. Suggesting that the Bush lock-'em-up-forever rule does have the beauty of clarity, it leaves "the executive free to do whatever they want" without a check and gets in the way of 200 years of history. Appreciating that the executive branch does not want "undue court interference," he asks what would be wrong with the court "helping you shape" the substantive rights of prisoners.
Olson says there is a check on the executive. Congress had 54 years to change the habeas statute after Eisentrager and chose not to (Congress, the great worrier over the rights of Nazi spies …). Scalia jumps onto the Congress-for-Supreme Court bandwagon, adding that if the people think the law is unfair, they can "change it with a stroke of a pen."
Breyer confesses to being worried about leaving a loophole for a "large category of unchecked and uncheckable detentions." He offers to tailor substantive law for these cases "to take care of the problems worrying you." But Scalia has had enough. "Do we even know what problems are worrying you?" he asks. Noting that the court has only lawyers before it, no witnesses, no evidence, he makes it clear that courts don't exist to legislate the rights of enemy combatants.
But in a few moments, it's Souter who's had it, now with the fiction that Cuba exercises control over Guantanamo. "We even protect the Cuban iguana. In bringing people from Afghanistan to Guantanamo, we are doing in functional terms exactly what we would do if we brought them to the District of Columbia."
Yes! It's true. One can't lock people in the closet under the stairs and claim they're not your stairs.
Ultimately, this case will come down to O'Connor and Kennedy, and also to whether a case from 1950 is distinguishable from today's. Of course an awful lot has happened since 1950 that should lead us to fear any government claiming, without apology or qualification, that it should have an unfettered right to lock up anyone, anytime. Our views have evolved on this issue thanks, in part, to 84-year-old Fred Korematsu, whose detention as a Japanese-American young man during World War II should remind the court why the whim of the president, or the stroke of Congress' pen, cannot be a substitute for the wisdom of the Supreme Court.