Boumediene v. Bush and the Detainment of Prisoners at Guantanamo

[*My consideration will consist of three essays which walk through the "Guantanamo detainee" issue from the perspective of what I call below the "Ordinary Smart Person"]

Bill Long 11/29/07

Docket Nos 06-1195; 06-1196; Oral Arg. Dec. 5, 2007

These two cases bring to the fore all the complexities, emotions, and uncertainties relating to the detaining of what are known as "enemy combatants" at Guantanamo Bay, Cuba, in the wake of the "War on Terror," especially the war commenced against al-Qaida in Afghanistan late in 2001. At one time there were more than 800 people imprisoned at "Gitmo"; today there are fewer than 360. But the fewness should not obscure the larger point: the detainment of these prisoners has shaken the United States legal system to its core and has been a growing blot on the United States' international reputation. Legal concepts and doctrines, as well as new statutes and decisions of federal courts have flown through the air on this issue so rapidly in the last five years that the issue is, to most Americans, a bewildering mass of confusion. And, when most Americans are confused, they either shop, eat or watch sports on TV.

I propose that we do none of those three things in the next several moments. Rather, in this and the next two essays, I will try to lay out significant questions and milestones along the way, from 2001-2007, that have framed the detention issue and then state what is at stake in these two cases. Though they deal with slightly different issues, at stake fundamentally is whether Congress can take away the historic right of habeas corpus (ability to have one's imprisonment considered in a US Court) for aliens (in law, people with citizenship in other countries) who are detained on non-US soil (the US has "leased" Guantanamo Bay from Cuba since 1903--though there is still some debate whether Guantanamo is "close enough" to being US soil that protections allowed in the US ought to apply there also.)

Considering the Problem--without Law in Mind

It might be a good exercise just to walk through a number of questions that the "ordinary smart person" ("OSP") might have about people who were captured in the post 9/11 "War on Terrorism." My point will be that these "ordinary" questions have tied the legal system in knots. Well, here are some questions an OSP might have. (1) If we captured people in the War on Terrorism, what do we call them? Are they prisoners of war? Or are they something else? (2) If they are prisoners of war, what rules govern how we should treat them? [Hint--there is a Geneva Convention that deals with this]. (3) Do the people, in order to be captured and detained, have to be in what is called the "theater of war" or can they simply be walking down the streets of Bali, for example? That is, is the "War on Terror" an excuse to pick up all kinds of people that we don't like and put them in detainment? Or, must we only detain those in Afghanistan who are seemingly fighting against us?

In answer to these questions, in general, we can say that the US (re)invented a little-used category for people captured in the "War on Terrorism:" they would be called "enemy combatants." As this article shows, the term "enemy combatant" was been used in US law in WWII, but it fell out of use about 55 years ago. The Bush Administration dusted off the concept and decided to apply it to those non-citizens captured pursuant to the President's Nov. 13, 2001 Military Order in the "War against Terrorism."

Ok, now we have a new category and we have lots of people we are going to put into this category. The President's order of Nov. 13 originally didn't limit the focus of who we could capture. The Boumediene case, in fact, relates to people who originally were arrested for plotting to damage the US Embassy in the former Yugoslavia. More recently, the Administration has used the term "enemy combatant" to describe alleged members/supporters of al-Qaida or the Taliban.

What Do You Do With These Enemy Combatants?

Now that you have rounded up these enemy combatants, you have two important decisions to make. Where do you put them? And, how do you treat them? Are they "protected" in any way by United States law? Or, once you have removed them from being "prisoners of war" are they removed not only from the protections of the Geneva Conventions (if indeed they are removed from the Conventions) but from any law? An OSP would ask the question of whether the "enemy combatant" label was re-invented in order to give the Adminstration "flexibility" in dealing with these prisoners. Would such desired "flexibility" seem to be in keeping with the values of the Bush Administration? I think so.

So, the OSP would be concerned just by the label "enemy combatant." The first question then is what does this label really mean? Well, the OSP wouldn't stop there. S/he would also ask about the place of detention--Guantanamo Bay. Is this a part of the United States? The question seems to be important because another lurks in its wake. Do "enemy combatants," whoever they really are, enjoy different "rights" if they are detained in US soil or "foreign" soil? That, it seems to the OSP, is a really important question. Well, suppose the answer is "yes." The OSP would assume that a person in US soil would probably have a greater tendency to have access to US "services" than those outside of the US. After all, that is important in our debate now on "illegal immigration"--i.e., what services we think we should give to people already here. No one is arguing that we should go into Mexico and give health care to people planning to come to the US.

So, the OSP might think, properly so, that enemy combatants, wherever they live in legal limboland, would receive more "rights" in the US. They would, certainly, receive more attention. People might protest outside the place where they are held. Enterprising lawyers would hold news conferences there. TV stations would rush to cover it. So the Administration made a decision to hold these people in Guantanamo Bay, Cuba, where none of us can go. Well, that is an interesting decision, isn't it? Gitmo, as it is popularly called, is 'officially' a part of Cuba, but we have 'leased' it from them for more than 100 years--and apparently the lease only terminates when we want it to end. One Supreme Court Justice (Kennedy) has said that Gitmo is for all intents and purposes part of the United States. Well, you see where that argument is going. If Gitmo is part of the US, then rights accorded to those in the US will be accorded to these "enemy combatants." But, we don't know what those rights are, do we?

So, we are descending into the nether world of uncertainty here. Indeed, the question of whether Gitmo is really or "constructively" (as lawyers love to say) part of the US has divided courts. The District of Columbia Circuit Court, for example, concluded that Gitmo wasn't a part of the US--therefore the federal courts had no jurisdiction over the people held there. They decided this in 2003. But then the US Supreme Court, in the Rasul v. Bush decision in 2004, decided after all that Gitmo was enough of a part of the US that the right of habeas corpus, assured to us under the federal constitution (I will get to this later), applies to the Gitmo detainees.

Conclusion

So, the OSP, just by doing a little thinking about the issue, would raise the questions that have actually bedeviled the legal system for the past five years. Indeed, an argument might be made that that was precisely what the Bush Adminstration wanted to do--so slow the process of dealing with these 800, now 360, people so that no definitive answer would be given until the Administration was out of office. I am not making the argument, though at times you wonder...

The next essay tries to show how the Courts and Congress has dealt with the questions of the OSP.

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Boumediene v. Bush I Al Odah v. United States*

Boumediene v. Bush I
Al Odah v. United States*