[00:00:00] ANDREW SZERI:
Good afternoon. My name is, uh, Andrew Szeri. I’m Dean of the Graduate Division, and it’s my pleasure to, uh, welcome you to, uh, this afternoon’s event.
Um, I’m pleased, along with the Graduate Council, to present to you Linda Greenhouse, uh, who is this year’s speaker in the Jefferson Memorial Lecture series. This series of lectures, uh, were established in nineteen forty-four through a bequest from Elizabeth and Cutler Bonestell. They hoped that, uh, these lectures would encourage students, faculty and staff, and members of the community to study the legacy of Thomas Jefferson and to explore values inherent in American democracy.
Uh, today actually is, uh, Constitution Day, I’m happy to say. And, uh, actually, today’s, today’s lecture is part of two days of events surrounding the visit of Linda Greenhouse to campus. Uh, yesterday, we had a forum on the courts, politics and the media, um, which was held yesterday afternoon in the Bancroft Hotel.
So without further ado, I’d like to, uh, welcome Professor Harry Scheiber, chair of the Jefferson Memorial Lecture Committee, who will introduce our speaker. Harry.
(applause)
[00:01:19] HARRY SCHEIBER:
Thank you, Andrew. I’d like to thank, uh, Dean Sary and his, um, office, and Ellen Godber in particular, and also Karen Chen and Tony Mendocino of the Institute for Legal Research, who helped us in staging the forum yesterday, which as I look out, I think many of you, uh, were actually there. Um, and to reiterate, uh, how pleased we are, uh, that we were able to, uh, have the cooperation in, um, the Jefferson Lectures sponsorship of, um, of the Institute’s, um, forum yesterday on, uh, media,
(coughs)
the media, law and pol- courts and politics. Um, if you look at it in, in your program, which has a very detailed biography of Linda Greenhouse, uh, you’ll see a list of former speakers, and this is definitely a series which in my memory, which is a long one now, not just for Berkeley, but from other times when I was aware of what was going on at Berkeley and reading these Jefferson lectures as they were published. Uh, this is a series of speakers who need no introduction, and she certainly is in that category.
Uh, for, um, anyone in the field, uh, of law or history or political science and public affairs and public policy, reading Linda Greenhouse in The New York Times on the subject of what was happening in the Supreme Court and on the general– more general subject of American constitutional law and its permutations in the hands of the justices and in the politics of the country, Linda Greenhouse’s columns were and front-page stories, uh, were central reading. There’s no question about it, and a couple of the very distinguished, uh, speakers at yesterday’s, uh, event, uh, spoke to the fact that, uh, they had, uh, it’s the first thing that happened on, uh, the day after the court had made a, uh– come to a decision. They would immediately rush not to the web, um, but to Linda Greenhouse’s account.
Uh, always perceptive, always, uh, very, um, uh, uh, rich in insights. Uh, she, uh, in addition to her long and distinguished career as a journalist, for which she won a Pulitzer Prize, uh, and, uh, in light of which she’s been invited to many universities. I’m sorry we waited so long.
We have. Uh, last comes best. Um, in addition to that, you know, she’s a b– a historical biographer, uh, who is– whose book on Justice Blackmun is going to be required reading for anyone who now or in future years is interested, uh, in the history of the modern court.
Uh, it’s with great pleasure that I introduce Linda Greenhouse, who will speak today on the secret of Guantanamo.
(applause)
[00:04:18] LINDA GREENHOUSE:
Thanks very much. I’m delighted to be here. I feel quite self-indulgent actually, to have, uh, pulled this lecture together, because along with the rest of you living through these last four or five years, uh, of one case after another and one controversy after another growing out of the administration policies, uh, toward the, in-involving the detainees at Guantanamo Bay, it’s been confounding.
And so, uh, the chance to pull my thoughts together and try to extract, I hope, a coherent narrative and find some meaning in what’s been going on, and, um, was, as I say, a self-indulgence, and I thank Berkeley and the Jefferson Committee very much for inviting me. On April 14th, 2003, Justice Stephen Breyer deli-delivered a lecture at the New York City Bar Association that he called Liberty, Security, and the Courts. Justice Breyer, for those who know him, is an optimistic person, and his presentation nineteen months after the events of nine eleven was suffused with the optimistic view that the American political and legal system, working together, would find a way to keep the country safe while not abandoning its fundamental legal principles.
He didn’t know where the precise balance between liberty and security would eventually be struck, Justice Breyer emphasized. But, quote, “Answers will be forthcoming,” he assured his audience. Quote, “Our judicial system is open.”
Then he added the following sentences: Quote, and if the government claims that the court lacks jurisdiction to decide a particular matter, the court, not the government, will decide if that is so. Moreover,” continuing, “in our system, habeas corpus represents the norm, lack of jurisdiction the exception. The theory of the ancient habeas corpus writ is that anyone in detention can challenge the lawfulness of that detention by getting word to a judge who can order the sheriff or other jailer to “bring me the body.”
If exceptions exist, courts will determine their scope and whether particular circumstances fall within them. Courts will decide how the law applies, what guarantees it provides, and whether the government has respected those guarantees,” unquote. Let me stress that this was not Justice Breyer speaking as an advocate arguing for one outcome or another in a particular case.
Indeed, no post nine eleven case had yet reached the Supreme Court. This was a Supreme Court justice expressing what he assumed to be a foundational, incontestable proposition. That while the law that would eventually apply in this crisis would emerge through a process of bubbling up, as he put it, out of the interaction of all interested and affected parties, the democratic process at work, as he put it, ultimately, the courts would decide.
Looking back from the perspective of nearly five and a half years, years that have encompassed four major Supreme Court decisions, two congressional efforts to strip federal judges of the authority to rule, and a steady stream of executive branch actions aimed at maintaining the status quo while displaying the patina of accommodation. Justice Breyer’s forecast appears to have been not only optimistic, but a bit naive. For anyone concerned about the rule of law, these have been disquieting years.
What has bubbled up has not been agreement on shared values, but deeply disturbing revelations of extra-legal or illegal activity, along with displays of executive branch intransigence bordering on defiance, congressional servility, and occasionally judicial timidity. The story of the Bush administration’s post-9/11 detention policies and the litigation those policies engendered is rich, multifaceted, and still unfolding, far too complex to be dissected in a single lecture. Indeed, it’s produced a plentiful and growing literature.
So my effort in our time together is more modest. It’s to solve, or at least tackle, what I call the mystery of Guantanamo Bay. How can it be that nearly seven years after the first da-detainees began arriving in the prison there, after numerous courtroom battles, the most significant of which resulted in defeats for the Bush administration’s position, that not a single detainee has ever been released by order of any court or any other body in a position of authority against the wishes of the administration?
How is it, in other words, that after all this time, all this spinning of wheels and running in place, nothing has happened? And what does the performance of the institutions that have played a part in this saga tell us about the vitality of the rule of law in the United States today? I should note that my focus is on the litigation-centered institutional, and separation of powers issues raised by this episode, rather than on the human rights issues so powerfully addressed by Jane Mayer and others.
To begin, it pays to follow an interesting but underexplored paper trail back to the earliest period of the formulation of Bush administration policy. In the closing months of two thousand one, the administration made two key determinations. One, announced in the president’s military order of November thirteenth, two thousand one, was to subject prisoners captured in the war that had been launched against the Taliban and Al-Qaeda to trial by military tribunals, commissions of military officers that would operate by rules yet to be determined outside the normal processes of either civilian or military law.
The second was to establish a prison camp at the Guantanamo Bay Navy Base in the belief that the non-citizens held there would be outside the jurisdiction of the federal courts. This latter policy was based on an analysis presented to the Pentagon by two Justice Department lawyers, Deputy Assistant Attorneys General Patrick Philbin and John Yoo, known to many of you. In a December 28th, 2001 memo to William Haynes, the General Counsel of the Defense Department, they concluded that because the Guantanamo Bay Naval Base was on territory leased from Cuba that was not part of the, quote, sovereign territory of the United States, it was highly unlikely that any federal court would have jurisdiction to entertain a habeas corpus petition from any of the detainees housed there.
They based their analysis on the 1950 Supreme Court case, Johnson against Eisentrager, which had rejected jurisdiction over habeas petitions filed by Germans who had been taken prisoner in China shortly after the German surrender in World War II, tried and convicted by a military commission in Nanking of aiding the Japanese enemy, and imprisoned by the United States in Germany. The prisoners, the court said in Eisentrager, quote, “At no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial, and their punishment were all beyond the territorial jurisdiction of the United States, unquote. The same reasoning should apply to the Guantanamo detainees, the Justice Department lawyers reasoned.
The 1903 lease agreement between Cuba and the United States, quote, specifically reserved sovereignty to Cuba and was, quote, thus definitive on the question of sovereignty and should not be subject to question In the courts, they wrote.
(cough)
However, their nine-page memo contained a warning. “The Eisentrager decision was not perfectly clear on the distinction, if any, between sovereignty and jurisdiction,” the authors wrote, noting that it was theoretically possible for a country to retain sovereignty over its territory while permitting another country to exercise jurisdiction there. Quote, “A non-frivolous argument might be constructed that the Guantanamo base was in fact within the territorial jurisdiction of the federal court, they concluded.
So far, this was fairly routine. The intriguing portion of the memo comes in a single sentence in the second to last paragraph. If habeas corpus was found to exist, what rights would the detainees have as habeas corpus petitioners, the authors asked.
Their answer, quote, “We are aware of no basis on which a federal court would grant different litigant rights to a habeas petitioner simply because he is an enemy alien, other than to deny him habeas jurisdiction in the first place.” Unquote. To unpack that, in other words, in their worst-case analysis, once in federal court, a detainee petitioner would be just another habeas petitioner entitled to proceed as any other.
This highly truncated analysis did not, of course, address the further question of whether the detainee petitioner would be able to invoke the full panoply of of rights. But the suggestion is unmistakable that something more than bare jurisdiction would follow, and that some claims would be cognizable. The habeas court’s jurisdiction, in other words, would not be an empty vessel.
To return now to the second part of the early paper trail. The President’s military order of November thirteenth, two thousand and one, establishing military commissions to conduct war crimes trials of the captured enemy combatants, engendered substantial criticism from those who argued that the administration was creating a parallel system of justice without sufficient justification, accountability, or transparency. On November 30th, the White House Counsel, Alberto Gonzales, took the unusual step of publishing a defense of the order on the op-ed page of The New York Times.
Although military commissions were, in fact, a rarity in American history and had not been used since the immediate aftermath of World War II, Gonzales structured his essay to make the establishment of such commissions seem normal, even routine. Quote, “Like presidents before him, President Bush has invoked his power to establish military commissions to try enemy belligerents who commit war crimes.” Unquote.
Gonzales began. Leaving aside the fact that whether a defendant had in fact committed a war crime was presumably a matter to be determined after a trial, there is much to criticize in this brief nine-paragraph essay. For example, taking on the critics, Gonzales wrote, “The suggestion that these commissions will afford only sham justice like that dispensed in dictatorial nations is an insult to our military justice system.”
In fact, the critics’ point was not that there was anything wrong with our military justice system, but rather that the military commission represented a deviation from the regular procedures and substantial protections afforded defendants, American military personnel, under the Uniform Code of Military Justice. But for our purposes, the relevant paragraph was this one. Gonzales wrote, “The order preserves judicial review in civilian courts.
“Under the order, anyone arrested, detained, or tried in the United States by a military commission will be able to challenge the lawfulness of the commission’s jurisdiction through a habeas corpus proceeding in federal court.” The language of the order,” Gonzales continued, “is similar to the language of a military tribunal order issued by President Franklin Roosevelt that was construed by the Supreme Court to permit habeas corpus review.” ” In other words, by the end of two thousand one, key players in the Bush administration appeared to share Stephen Breyer’s basic assumptions.
The ability of a prisoner to get before a federal judge by means of a petition for habeas corpus was a default assumption. True, the administration was making a big bet, although hardly an unfounded one, given the existing case law, that habeas jurisdiction would not, in fact, extend to Guantanamo Bay. But it took that gamble on the assumption that the courts would eventually and legitimately decide whether its bet was correct, and that if the bet proved to be wrong, the detainees would be entitled to be treated as habeas petitioners like any others.
If the administration had actually adopted and held to these positions, the history of the ensuing years might well have been very different. The executive branch, Congress, and the Supreme Court, along with other stakeholders, could have engaged in the kind of democratic conversation that Justice Breyer envisioned and eventually arrived at a center of gravity that, while not pleasing to all, would have been acceptable to most. Instead, neither of the documents I’ve just discussed proved to embody Bush administration policy, and the administration had no interest in accommodation.
The notion that there could be any legal constraint on the president’s wartime power as commander-in-chief was unacceptable to the culture deep inside the administration. As Jack Goldsmith, the disaffected former head of the Office of Legal Counsel, has documented, quote, “The administration chose to push its” legal discretion to its limit and rejected any binding legal constraints on detainee treatment under the laws of war,\” Goldsmiths wrote of the decisions made in late two thousand and one and early two thousand two. His specific reference was to the decision to deny prisoner of war status to the Guantanamo detainees and to reject application of the Geneva Conventions.
But the same attitude led to the conclusion that federal courts should not be made available as the ultimate arbiters of the treatment of the detainees. Under Vice President Cheney’s counsel, David Addington, the administration chose to pursue, quote, a relentlessly unilateral approach, which encompassed, quote, hostility to working with Congress and refusal to anticipate or take steps to avoid possible negative responses from the Supreme Court. As Goldsmith describes Addington’s position toward any suggestion of accommodation from others in the administration, quote, we’re going to push and push and push until some larger force makes us stop.
And I’ll just add as a footnote here, David Addington’s role in this crucial early period in policy formation was unknown even to the informed public. Stephen Brill’s well-regarded account of the government’s response to nine eleven during the first year after the attacks doesn’t even mention his name. The administration quickly arrived at the position that the treatment of the Guantanamo detainees was outside the jurisdiction of the federal courts.
It’s important to understand the sweeping nature of this conclusion. The administration’s position was not limited to the sovereignty issue the Supreme Court had addressed in the Eisentrager case, nor to the position that the federal habeas corpus statute, as a matter of statutory interpretation, does not apply to a naval base in Cuba. That statute grants to federal district courts, quote, within their respective jurisdictions, unquote, the authority to entertain petitions from any person who claims to be held in custody in violation of the Constitution or laws or treaties of the United States.
Rather, the position was that as a matter of the separation of powers, how to handle those captured in the war on terror was for the political branches and not for the courts. Arguing in district court in June 2002 for the dismissal of habeas petitions filed on behalf of two groups of Guantanamo detainees, the administration insisted that whatever rights the detainees might have, quote, “The scope of those rights are for the military and political branches to determine.” Both the district court, in granting the government’s motion to dismiss those petitions, and the Court of Appeals, in affirming, based their rulings on Eisentrager and avoided confronting the administration’s views on presidential power.
In opposing Supreme Court review in October two thousand three, the administration was not content to simply rest on those victories. The Solicitor General used the brief in opposition to certiorari to Supreme Court review to express the full scope of the administration’s position. Here’s what the Solicitor General told the court: “The extraordinary circumstances in which this litigation arises and the particular relief that petitioners seek implicate core political questions that the Constitution leaves to the President as Commander-in-Chief.
Petitioners asked the courts to opine on the legality of the president’s ongoing military operations and to release individuals who were captured during hostilities and who by the mil– and who the military has determined should be detained. Particularly where hostilities remain ongoing, the courts have no jurisdiction and no judicially manageable standards to evaluate or second-guess the conduct of the president and the military. These questions are constitutionally committed to the executive branch, unquote.
In fact, the government substantially mischaracterized the relief sought by at least one of the two groups of petitioners. The Al Odah petitioners, a group of Kuwaitis, had told the court in their petition, quote, “Petitioners do not contend that the government lacked power to detain them, nor do they ask for immediate release. They ask only that, subject to reasonable security measures, they be allowed to meet with their families, consult with counsel, and obtain the judgment of some impartial tribunal as to whether there is cause to detain them.
In short, they ask only that the court ensure that adequate procedures are in place so that their detentions are not arbitrary. Unquote. It was widely assumed that, with many other detainee-related cases in the pipeline, the justices would stand back, at least at this early stage.
One recent account of another of the cases, Hamdan against Rumsfeld, describes one detainee lawyer emailing another after learning on the morning of November 10th, 2003, that certiorari had been granted in the Rasul and Al Odah cases. “I still cannot believe cert has been granted, but wow.” There’s no way for us to know whether it was the government’s aggressive argument that got the Court’s attention or whether the justices would have been persuaded in any event of the significance of the issue presented and the desirability of the Court asserting a role in resolving it.
Recall Justice Breyer’s confident declaration just eight months earlier,
[00:23:05] JUSTICE BREYER:
“Our judicial system is open.”
[00:23:07] LINDA GREENHOUSE:
It’s clear regardless that in deciding to grant review, the Court took great care to proceed on its own terms and not the government’s. The Solicitor General had framed the question as whether, quote, “United States courts lacked jurisdiction to consider challenges to the legality of the detention of aliens captured abroad in connection with ongoing hostilities and held outside the sovereign territory of the United States at the Guantanamo Bay Naval Base, Cuba.” But the court rewrote the question in a neutral way that rejected any assumption about the status of Guantanamo.
Its order of November 10th announced that the two petitions were consolidated, granted, quote, “Limited to the following question, whether United States courts lacked jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.” In other words, it didn’t assume anything about sovereignty. Sovereignty would be for the Supreme Court to decide.
If the change in the wording of the question was intended as a hint to the administration that the Court was looking for a less tendentious presentation, it was a hint the administration did not take. If the Court envisioned the grant of cert as the opening round of an interbranch dialogue, as I believe it did, The dialogue would prove to be all one way, with the Court consistently offering flexibility and accommodation, and the administration demanding nothing less than total deference. Remarkably, this one-way dialogue is still ongoing five years later.
The court’s early willingness to accommodate the administration’s concerns is revealed by Justice Breyer’s comments to Solicitor General Theodore Olson during the argument in this case, Rasul, on October twentieth, two thousand four. Here’s what Breyer said. Justice Breyer, quote, it seems rather contrary to an idea of a constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check.
That’s problem one. Problem two is that we have several hundred years of British history where the cases interpreting habeas corpus said to the contrary anyway. And then we have, and this is what I find really interesting, Breyer says, then we have the possibility of really helping you with what you’re really worried about, which is undue court interference by shaping the substantive right to deal with all those problems that led you to begin your talk by reminding us of those problems.
The Solicitor General had opened his argument with the declaration, “The United States is at war.” “So,” Breyer continued, “if that’s the choice,” why not say, ‘Sure, you get your foot in the door, prisoners in Guantanamo, and we’ll use the substantive rights to work out something that’s protective but practical?’” Mr. Olson replied that the question had been resolved in the government’s favor half a century earlier in Eisentrager.
Justice Breyer, determined to offer the court services as the administration’s partner rather than its adversary, pressed on. Justice Breyer: “No, I grant you this. My question has to assume that Eisentrager is ambiguous and not clearly determined yet.
But then on that assumption, I’m still honestly most worried about the fact that there would be a large category of unchecked and uncheckable actions dealing with the detention of individuals that are being held in a place where America has the power to do everything. Now, that’s what we’re in because of Article III. And the other thing on the opposite side, as I said, is it’s possible to tailor the substance to take care of the problems that are worrying you.
But the Solicitor General stood firm. There was no substance to discuss. There was no jurisdiction.
In Rasul against Bush, the decision in this case, issued two months later, the Supreme Court held to the contrary by a vote of six to three. Eisentrager was not overruled, but rather distinguished on several grounds, including the fact that unlike the German prisoners in the earlier decision, who were formally charged with war crimes and convicted by a military tribunal, these de– detainees were being held in open-ended detention without charges or the prospect of a hearing. But the principal basis for jurisdiction, Justice Stevens wrote for the majority, was that Guantanamo Bay was, quote, “territory over which the United States exercises exclusive jurisdiction and control.”” Rasul against Bush was a modest decision, another step by the Court on what I believe it viewed as a road to accommodation.
The Court avoided any constitutional judgment, limiting its holding to the scope of the habeas corpus statute, and it was silent on how the district court should approach the merits of the petitioners’ claims. Quote, “Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners’ claims are matters that we need not address now,” Justice Stevens wrote. The unlikely outcome that Patrick Philbin and John Yoo had warned of two and a half years earlier had indeed come to pass.
Recall their further warning that if habeas jurisdiction were found to exist, the Guantanamo petitioners would not have what they called litigant rights different from those of other habeas petitioners. But that is not what the administration told the district judges who now had to consider the remanded Rasul and Al Odah cases, as well as a dozen other pending habeas petitions. Immediately renewing its motion to dismiss the petitions, the government proceeded as if Rasul had not been decided, or as if that decision had been a victory rather than a repudiation of the very basis for transferring the prisoners to Guantanamo in the first place.
In a filing on October fourth, two thousand four, the administration made the remarkable assertion that, quote, “On a fundamental level,” petitioners’ objection to the executive’s power to capture and detain alien enemy combatants in foreign territory during ongoing hostilities is flatly inconsistent with the historical understanding of the president’s role as commander-in-chief of the armed forces and runs counter to Congress’s specific authorization to the president to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September eleventh, two thousand and one, or harbored such organizations or persons. That reference was to the authorization for the use of military force resolutions that the Congress had passed on September eighteenth, two thousand one, authorizing military action against the Taliban and Al-Qaeda. To recognize any substantive right, any substantive rights on the part of the petitioners, quote, “Would improperly embroil the Court in second-guessing decisions on sensitive issues that the Constitution entrusts to the executive branch,” the government’s motion insisted.
Then it added, “Because overseas aliens are not a part of the contract that created the United States, they are not beneficiaries of its protections.” It’s worth pausing to consider that statement. First, of course, the Supreme Court had just ruled that the aliens held at Guantanamo Bay were not, as a functional matter, overseas.
That was the basis for its jurisdictional holding. And second, the identity of who was or was not a part of the contract that created the United States is far less relevant than the nature of the social compact based on adherence to the rule of law that binds residents in the United States today. From this perspective, the events I’m relating have less to do with the rights of the Guantanamo detainees than with the vitality of the legal principles that protect us all.
To quote Owen Fiss, quote, “The obligations imposed on the government by the Bill of Rights are not a quid pro quo offered to its subjects, but the expression of principles of right behavior,\” unquote. District judges responded to the government’s position in diametrically opposite ways. On January nineteenth, two thousand five, Judge Richard Leon dismissed one set of petitions on the ground that there was no viable legal theory on which they could be granted.
The petitioners had no rights to be vindicated in federal court, and any implication from r-Rasul to the contrary was incorrect, Judge Leon said, explaining, “The founders allocated the war powers among Congress and the executive, not the judiciary.” “As a general rule,” he said, “the judiciary should not insinuate itself into foreign affairs and national security issues.” Unquote.
Two weeks later, Judge Joyce Hens Green ruled in another set of petitions that, to the contrary, the petitioners have stated valid claims under the Fifth Amendment to the United States Constitution, and that the procedures implemented by the government to confirm that the petitioners are enemy combatants subject to indefinite detention violate the petitioners’ rights to due process of law. As for the Supreme Court’s intention on remand, Judge Green said, “Careful examination of the specific language used in Rasul reveals an implicit, if not expressed, mandate to uphold the existence of fundamental rights.” Judge Green’s reference to procedures, which she was talking about here, was just something new which the Supreme Court had never considered.
Nine days after the decisions in Rasul, and in another detainee case decided the same day, Hamdi against Rumsfeld, Paul Wolfowitz, the Deputy Secretary of Defense, issued an order that defined enemy combatant for the first time and established a new body, the Combatant Status Review Tribunal, composed of three military officers, who would decide whether each detainee’s classification as an enemy combatant was correct. The Supreme Court would later have occasion to consider the adequacy of this substitute for federal court review, but more than three years would go by in the meantime. Judge Green’s decision received attention across the country and around the world.
But despite her strong language, no relief was forthcoming for any of the detainees in the eleven habeas cases in which she had ruled. Instead, four days later, she granted the government’s motion for a stay pending appeal. Judge Green blinked, something the administration almost never did.
And then the moment passed. Before the District of Columbia Circuit could review the appeals from these two opposing district court rulings, the landscape changed, freezing in place everything and pushing relief for the detainees further out of reach. On December thirtieth, two thousand and five, President Bush signed into law the Detainee Treatment Act of 2005.
This statute, key portions of which were passed without hearings during the rush to the year-end congressional recess, had several interrelated provisions. One set out a process by which the District of Columbia Circuit was to review the validity of the enemy combatant status made by the Combatant Status Review Tribunals. Another section provided, and this is the one that’s relevant here, with the exception of that specific review provision, quote, \”No court, justice, or judge shall have jurisdiction to hear or consider a petition for habeas corpus from an alien detained at Guantanamo Bay.
This jurisdiction-stripping provision, which had been sponsored by one of the administration’s strongest allies in the Senate, Lindsey Graham of South Carolina, purported to apply to pending petitions as well as future ones. So the administration moved immediately to dismiss all the petitions then pending in district court. There were about a hundred and eighty of them filed on behalf of three hundred detainees, roughly half the population that was then at Guantanamo.
The administration also promptly filed a motion at the Supreme Court asking the justices to dismiss a case they had agreed to hear two months earlier, a challenge by Osama bin Laden’s former chauffeur, a Yemeni named Salim Ahmed Hamdan, to the validity of the military commission that was due to conduct his war crimes trial. Hamdan proved the next occasion for the Supreme Court to attempt to accommodate the administration. That did not at at first appear to be the case.
The court granted Hamdan’s cert petition over the Solicitor General’s vigorous opposition. The appeal wasn’t ripe, the government argued. The ruling by the Court of Appeals simply lifted the district court’s ill-considered and unprecedented injunction against proceeding with the military commission.
No trial had yet begun. Hamdan’s challenge to his military commission had been filed as a petition for habeas corpus, and the administration told the court, “The habeas statute is merely a grant of jurisdiction that does not create any substantive rights.” Finally, the Solicitor General argued that Hamdan, who by then had been held at Guantanamo for more than three years, would suffer no prejudice from further delay in resolving his claims because he was, quote, subject to detention as an enemy combatant regardless of the outcome of this litigation or whether he is ultimately convicted of a specific war crime, unquote.
The Detainee Treatment Act actually proved to be a distraction rather than the obstacle to deciding the case that it had first appeared to be. The Supreme Court held that as a matter of statutory interpretation, the jurisdiction-stripping section did not apply to the habeas corpus petitions that were pending on the date of its enactment. Nor, Justice Stevens said for the majority, was the government’s reasoning persuasive in asking the Court to refrain from deciding the case.
Stevens said, quote, “To the contrary, Hamdan and the government both have a compelling interest in knowing in advance whether Hamdan may be tried by a military commission that arguably is without any basis in law and operates free from many of the procedural rules prescribed by Congress for courts-martial, rules intended to safeguard the accused and ensure the reliability of any conviction.”” On the merits, the Court held that the military commission framework, as promulgated unilaterally by the executive branch, did in fact lack a basis in law and that the rules specified for Hamdan’s trial were illegal. The decision rejected the administration’s claim that the President possessed inherent authority to proceed as he wished. My focus is not on the court’s reasoning, but on the expectation of what would happen next.
As in Rasul almost exactly two years earlier, the court did not behave as it, as if it assumed that its word would be the last. Rather, the court believed once again that it was engaging in a dialogue, as demonstrated by Justice Breyer’s concurring opinion that was also signed by Justices Kennedy, Souter, and Ginsburg. He wrote, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.
Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our nation’s ability to deal with danger. To the contrary, that insistence strengthens the nation’s ability to determine, through democratic means, how best to do so. The Constitution places its faith in those democratic means.
Our Court today simply does the same.” Unquote. “It was,” Jack Balkin wrote approvingly on his blog just hours after the ruling was handed down, “a democracy-forcing decision.”
Professor Balkin wrote, “What the court has done is not so much counter-majoritarian as democracy-forcing. It has limited the president by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the court will not stand in his way.” “I repeat,” Professor Balkin wrote, “nothing in Hamdan means that the president is constitutionally forbidden from doing what he wants to do.”
” What the Court has done, rather, is use the democratic process as a lever to discipline and constrain the president’s possible overreaching,” unquote. Justice Breyer and Professor Balkin were expressing a democratic ideal. But to use the vernacular, they and everyone else who cheered, or at least who expressed relief at the outcome in Hamdan, got rolled.
By the end of September two thousand and six, the administration prevailed on the Republican majority in Congress to pass the Military Commissions Act, which not only authorized military commissions, but once again stripped the federal courts of their habeas corpus jurisdiction, this time taking care to make the provision apply explicitly to all cases without exception pending on or after the date of the enactment of this act. The message of the Military Commissions Act, which President, which President Bush signed into law on October fifteenth, 2006, was not subtle. Quote, “This time, Congress and the president did not take the” court’s power grab lying down,” John Yoo exulted in an online Wall Street Journal essay four days later.
Calling the new law above all a stinging rebuke to the Supreme Court, the former Office of Legal Counsel lawyer said that Congress and the White House together had, quote, “told the courts in effect to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with military commissions. The law restores to the president command over the management of the war on terror.”” Unquote. It also pushed into an ever-receding future, a moment at which the government might have to yield to judicial authority in its handling of the detainees.
Once again, as after passage of the Detainee Treatment Act the previous year, the administration moved to dismiss all the pending habeas petitions filed by Guantanamo detainees. These included the cases on appeal to the District of Columbia Circuit from the conflicting rulings by judges, by Judges Leon and Green more than a year and a half earlier. On February twentieth, two thousand seven, the appeals court, declaring that federal courts have no jurisdiction in these cases, dismissed the two groups of petitions that had been filed on behalf of some forty-five detainees, all of whom by then had been in custody for more than five years.
The panel majority, with Judge Rogers dissenting, rejected the detainees’ argument that if the new provision succeeded in depriving the courts of jurisdiction, then it amounted to an unconstitutional suspension of the writ of habeas corpus be-because the conditions set by the Constitution and by Supreme Court pres-precedent for congressional suspension of the privilege of the writ of habeas corpus had not been met. Less than two weeks later, lawyers for the detainees filed expedited appeals at the Supreme Court. The events that rapidly ensued included one of the most startling procedural turnabouts in Supreme Court history.
Is it fanciful to suppose that at this point, the administration might have acknowledged the significance of the suspension issue and the desirability of a definitive resolution before more time passed by acquiescing to certiorari, by agreeing that the Court should hear these cases? Once again, the administration vigorously opposed review. Quote, “As aliens outside the sovereign territory of the United States,” sound familiar?
“Petitioners have no rights under the Suspension Clause, and in any event, the habeas rights protected by that provision would not extend to aliens detained at Guantanamo Bay as alien combatants,” the Solicitor General told the justices. On April 2nd, the Court denied cert over the dissents of Justices Breyer, Souter, and Ginsburg, and with the unusual written explanation by Justices Stevens and Kennedy of their own decision against voting to hear the cases. The Breyer group stressed that the questions presented are significant ones warranting our review, and they observed that the petitioners had plausibly argued that the appeals court’s decision was contrary to this Court’s precedent, namely to Rasul’s recognition of habeas corpus jurisdiction over Guantanamo.
But for their part, Justices Stevens and Kennedy said that despite the obvious importance of the issues raised in these cases, the Court should follow its usual practice of withholding review until, quote, “the exhaustion of available remedies.” The remedy at issue was the limited review that the Detainee Treatment Act provided in the District of Columbia Circuit of determinations by the Combatant Status Review Tribunals that individual detainees had been properly classified as enemy combatants. The two justices held out the possibility that this Supreme Court would waive the exhaustion requirement if it turned out that the government has unreasonably delayed proceedings or caused some other and ongoing injury to the petitioners.
Here indeed was a puzzle. Justice Stevens, the author of the majority opinions in both Rasul and Hamdan, surely agreed with the Breyer three that Supreme Court review was appropriate at this stage. His agreement would have provided a fourth vote, the number necessary for a grant of cert.
The only plausible explanation is that Justice Kennedy, who had voted with the majority in the earlier two cases, was wavering this time. If he couldn’t be counted on, there was nothing to be gained and much to lose by pushing him. Justice Stevens must have decided to withhold his own vote and play for time.
In late April, the detainees’ lawyers filed petitions for rehearing, that is, for reconsideration of the denial of cert, which the administration, not surprisingly, opposed. On June twenty-second, with only days to go until the end of the term, the lawyers filed replies to the government’s opposition. To their reply brief, the lawyers for the Al Odah petitioners attached a document that the court had not yet seen.
It was a sworn declaration filed in the District of Columbia Circuit in another case by Lieutenant Colonel Stephen Abraham, a lawyer in private practice and an intelligence officer in the Army Reserve. During a tour of active duty in Guant— he had served at Guantanamo as a member of a combatant status review tribunal. His seven-page declaration recounted his experience and his conclusions about the serious deficiencies of the process, the use of generic, often outdated intelligence, the denial of his request to see exculpatory information, even a refusal by the government to acknowledge the existence of any exculpatory evidence.
Quote, “What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” Lieutenant Colonel Abraham reported. In their brief, the Al-Odah lawyers told the court that as a result of this Abraham declaration, quote, “It is now clear that not only is the remedy inadequate, but also the underlying combatant status review tribunal process was an irremediable sham. A grant of certiorari, they said, should not await exhaustion of this flawed process.
Justice Kennedy, perhaps others as well, was evidently now persuaded. The Court granted rehearing on the final day of its term, June twenty-ninth, two thousand seven. It’s extremely unusual for the Court to reconsider a denial of cert in the absence of an intervening court decision or some other landscape-changing development.
In fact, the two thousand seven edition of the authoritative book called The Supreme Court Practice, Stern and Gressman, noting the grant of rehearing in these cases calls it one of the rare exceptions in which such a petition has succeeded. Only two other examples are cited, one from nineteen twenty-nine and one from nineteen forty-six. A petition for rehearing requires a majority vote rather than the ordinary rule of four.
So the administration was now on notice that a majority of the Court was sufficiently concerned by this sequence of events to make a once-in-a-generation reversal of course. In granting cert, the Court vindicated Justice Breyer’s declaration of more than five years earlier, “Our judicial system is open.” From the opening pages of Justice Kennedy’s seventy-page opinion for the five-to-four Court in Boumediene against Bush, this case which was decided in June, it’s apparent that something changed.
Gone is the modulated tone of the earlier opinions, replaced by one of exasperation, something close to distress. In recounting the procedural history of the case, for example, Justice Kennedy refers back to Justice Breyer’s concurring opinion two years earlier in Hamdan, which he had joined, recalling that the opinion invited the President to go back to Congress to seek the authority he believes necessary. This was the democracy-forcing aspect of Hamdan that Jack Balkin had celebrated.
Justice Kennedy makes it clear that in the Court’s view, the President and Congress misused or at least misconstrued that invitation. Quote, “The authority to which the concurring opinion referred was the authority to create military commissions. Nothing in that opinion can be construed as an invitation for Congress to suspend the writ.”
Unquote. Kennedy wrote for the Court. The change from the earlier opinions to Boumediene is much deeper than one of tone, however.
It’s clear that the government’s intransigence, its refusal to take a polite hint, has forced the Court to dig deeper than it originally cared to go into the bedrock of separation of powers doctrine and the sources of its own authority. From this perspective, Boumediene against Bush is more than the third chapter in the Supreme Court’s confrontation with the post-9/11 world. It’s among the Court’s most important modern statements on the separation of powers.
On the order of the Chadha decision twenty-five years earlier, which struck down the legislative veto device as violating the separation of powers. As a judicial check on unbridled executive power, Justice Kennedy says, “the writ of habeas corpus was seen by the framers as an essential mechanism in the separation of powers scheme and as part of the essential design of the Constitution.” The Constitution’s separation of powers design, quote, “protects persons as well as citizens,” Justice Kennedy says.
Just as Jagdish Rai Chadha, a non-citizen, was entitled to invoke separation of powers principles when he challenged Congress’s unilateral veto of the suspension of deportation he had been granted by the executive branch, so too can the non-citizens held at Guantanamo invoke those principles in asserting access to habeas corpus.” Chadha, a Kenyan student who overstayed his visa, was of course within the sovereign territory of the United States, as the Guantana- Guantanamo detainees concededly are not when he challenged the legislative veto. In Boumediene, the Court finally makes explicit what was implicit in Rasul, that the test for where the Constitution applies outside the country’s borders is a functional and not a formal one.
Justice Kennedy says that the administration’s continued insistence that because Cuba retains formal sovereignty over Guantanamo, the Constitution is ina-inapplicable there, despite the government’s exercise of functional control, quote, “raises troubling separation of powers concerns.” Such a limited understanding of the reach of the Constitution would, he warns, make it possible for the political branches to govern without legal constraint. He adds, “Our basic charter cannot be contracted away like this.
The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” Kennedy continues, “Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another, leading to a regime in which Congress and the President, not this Court, say what the law is.”
Repeating his earlier assertion that the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers, Justice Kennedy concludes this portion of the opinion. “The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.”” Applying that analysis to the question at hand, the court concludes with a three-part holding. First, that the suspension clause has full effect at Guantanamo Bay, so that the detainees there must be afforded either access to the writ of habeas corpus or an adequate substitute.
Second, that the review procedure provided by the Detainee Treatment Act is so truncated as not to be an adequate substitute. And third, that the jurisdiction-stripping provision of the Military Commissions Act therefore effects an unconstitutional suspension of the writ. As to what rights the detainees can seek to vindicate through their habeas petitions, the court is silent.
Quote, “Our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined,” Justice Kennedy says. That silence leads Chief Justice Roberts, in his dissenting opinion, to mock the majority for having replaced, quote, “a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.”
But a more careful reading of the majority opinion shows that the procedures the court regards as constitutionally required are not so shapeless. The habeas court must have the power to order the conditional release of an individual unlawfully detained, Justice Kennedy tells us, while noting that the remedy of release is not necessarily the appropriate one in every case. And it’s constitutionally required, he says, to permit detainees to introduce exculpatory evidence, to contest the sufficiency of the government’s evidence, and to supplement the record on review.
Absent from the court’s discussion is an injunction to the habeas court to defer to the findings below. That’s striking because Justice Kennedy is usually among the justices who insist on deference by federal judges reviewing ordinary civilian convictions on habeas corpus. He acknowledges this implicitly as he explains the difference.
He says, “A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context, the need for habeas corpus is more urgent.
Unquote. It’s startling to compare the Boumediene court’s insistence on this range of procedural rights for non-citizens held in Cuba with the court’s response four years earlier to the claims of Yasser S. M. Hamdi, a U.S. citizen detained as an enemy combatant in a naval brig in South Carolina. Hamdi was entitled to some version of a due process hearing before a neutral decision-maker or an impartial adjudicator, the court held in a plurality opinion by Justice O’Connor.
But the decision-maker need not be a federal judge, and the process need not be a petition for habeas corpus. It could be a military tribunal. Before the contours of the Hamdi decision could be fleshed out, the administration shipped Hamdi back to Saudi Arabia, where his family lived and where he had grown up.
The Hamdi decision of 2004 was unstable, tentative in tone, and lacking a majority. But eight justices, all but Justice Thomas, nonetheless agreed that, contrary to the government’s position, Hamdi was entitled to some form of process. As reflected by Justice O’Connor’s widely quoted declaration that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens, the Court was seriously concerned then by the implications of the government’s arguments.
The Court’s concerns were to grow only deeper, eventually driving the majority toward a more expansive embrace of the territorial scope of habeas corpus than might reasonably been have predict– than might reasonably have been predicted only a few years earlier. I promised at the beginning to solve the mystery of Guantanamo Bay. How is it that the administration has lost and lost and lost again, and has still not been ordered against its will to release a single detainee?
I think the answer lies in the competing trajectories pursued by the two principal actors in this drama, the Bush administration and the Supreme Court. Each began from a position of relative modesty, as reflected by the early administration documents on the one hand, and the court’s initial tentative steps in Rasul and Hamdi. The administration’s rapid shift to a hardline decision to push and push and push, in turn radicalized, for lack of a better word, a court that, while inherently conservative, is hardwired to protect its own prerogative to say what the law is.
Had the administration shown more receptivity to the court’s concerns at the beginning, the court probably would not have felt pressed to abandon its historic posture of deference to the executive in wartime. Conversely, had the justices understood at the beginning that the administration would never yield to modest decisions containing gentle hints, the court might have acted more decisively early enough to persuade the administration of the wisdom of compromise. At some point early in this narrative, the trajectories could have crossed, but the moment was quickly lost.
The trench warfare continues as lawyers for the detainees and the government battle in district court and the Court of Appeals over how to handle the revived habeas corpus petitions. There are no winners in this tale, and lacking a final chapter, its lessons remain obscure. Answers will be forthcoming, Justice Breyer told the New York lawyers on a spring morning more than five years ago.
We await those answers still. Thank you very much.
(applause)
[00:57:29] ANDREW SZERI:
Okay. Well, I’d like to, uh, thank our speaker very, very kindly for that, uh, most interesting talk. Uh, we will, we will take about fifteen minutes worth of questions, and we have a mobile microphone here. So, uh, if you, if you show us your interest, we’ll come by with a microphone
[00:57:51] MODERATOR:
And we ask that you be brief with your questions. Thank you.
[00:57:57] JEFFREY GALE:
Uh, Linda, my name is Jeffrey Gale. It’s an honor to be here with you today. You and I talked about a Chicago Tribune reporter who was covering the court for the NewsHour.
I’m doing a documentary about Justice Goldberg, and my question to you, since, uh, he was involved with the Miranda decision going way back, uh, yesterday on the front page of USA Today, they talked about a prison in Afghanistan and what can we do to stop the same situation we had at Gitmo to d– to go to Afghanistan, whether Senator Obama or Senator McCain are elected? What can everyone in this room do?
[00:58:43] LINDA GREENHOUSE:
Well, there’s a, there’s a debate going on as to whether to read the b– whether the Boumediene decision can be interpreted as Guantanamo specific, as I actually think it is, uh, or whether it adopts a much broader principle of functional jurisdiction and whether it would apply to Bagram Air Base or whatever, um, as some people argue that it does, and that obviously hasn’t yet been tested. Um, when you say, what can we do, you know, you’re asking me for some kind of political solution, which obviously I cannot hand over to you. But, um, I, you know, whether the courts would remain open, quote, “remain open,” um, to claims of detainees held, um, in these other situations, um, you know, um, I don’t know.
I don’t actually think, I think that would be a stretch from, uh, from Guantanamo, but maybe not. It’s a question way back there. Wait, wait, wait, put the microphone.
[00:59:54] AUDIENCE MEMBER:
Could you give us your opinion of John–
[00:59:56] LINDA GREENHOUSE:
I’m sorry, I can’t hear you.
[00:59:57] AUDIENCE MEMBER:
John Yoo’s opinion of law about, uh, detainees. John Yoo.
[01:00:07] LINDA GREENHOUSE:
I, I, I couldn’t-
[01:00:09] MODERATOR:
I think he wants your opinion of John Yoo’s-
[01:00:13] AUDIENCE:
The memo.
[01:00:14] LINDA GREENHOUSE:
The memo of John Yoo’s memo? Of- Memo, excuse me well, of the torture memos, or the memo that I cited here?
[01:00:23] MODERATOR:
He says either one or both.
[01:00:25] LINDA GREENHOUSE:
Either one?
(laughter)
[01:00:27] MODERATOR:
Well, or both.
[01:00:30] LINDA GREENHOUSE:
Um, My feeling about John Yoo’s role in the evolution of, uh, administration policy is that, um, he was an enabler. Uh, but I don’t think that– I don’t think it’s a John Yoo problem.
I think it’s a problem of the higher-ups and at the very top of the administration who were happy to receive the kind of cover that those memos gave them to go ahead and do what they wanted to do anyway. So, um, if it’s a matter of, uh, you know, assessing responsibility and accountability, I would go, uh, much higher than an assistant, uh, um, attorney general or a deputy assistant attorney general in the Office of Legal Counsel.
(laughter)
Mary Ann Thomas with World Can’t Wait: Drive Out the Bush Regime and Fire John Yoo. Um, we are working very hard to hold him accountable for the torture memos and, um, for war crimes, basically, because he is advocating the loss of, um, the Geneva Convention. And if, if you’re advocating holding the highest level accountable, where do we ourselves,
[01:02:05] MARY ANN THOMAS:
Are we to be held accountable? Where does the accountability begin and where does it end?
[01:02:12] LINDA GREENHOUSE:
Mm-hmm. I mean, John Yoo is responsible for advocating the unitary presidency and advocating torture and, you know, disallowing the Geneva Convention. So where does accountability begin? Well, you’re, you’re asking, you know, pretty profound questions that are above my pay grade. But, um, I think
(laughter)
I don’t– and I’m not, I don’t take you lightly. Um, but I actually think, uh, it’s a bit of a cop-out from the m– the most profound issue of accountability to, you know, focus on somebody who was, after all, a bureaucrat who was writing memos rather than those who solicited, embraced, and implemented, uh, what was advocated in those memos. That’s just my opinion.
[01:03:11] LOUISE SPECHT:
Louise Specht, Bay Area Religious Campaign Against Torture.
[01:03:16] LINDA GREENHOUSE:
I, I can’t help– I couldn’t quite hear you.
[01:03:18] LOUISE SPECHT:
Louise Specht, Bay Area- Mm-hmm. Religious Campaign Against Torture. In June this year, I read an article in the Guardian UK paper saying that an unknown but probably not small number of detainees were being held incommunicado on an unknown number of ships. Do you know anything about that?
[01:03:44] LINDA GREENHOUSE:
Only what I’ve read. I don’t have any, you know, inside information, now.
[01:03:53] AUDIENCE MEMBER:
Larry, Ruth, uh, my question is to what degree does it appear to you that the administration has been, uh, to use the vernacular, gaming the system? That is, that it could have predicted that sooner or later jurisprudence would catch up to it, and the Supreme Court would, would, uh, hand down the decisions, not necessarily in the order that they’ve handed them down.
[01:04:16] LINDA GREENHOUSE:
Mm-hmm.
[01:04:17] AUDIENCE MEMBER:
But nevertheless, they proceeded anyway on the theory that their trajectory was going to put far in the future dealing with the reality of–
[01:04:27] LINDA GREENHOUSE:
Mm-hmm.
[01:04:28] AUDIENCE MEMBER:
the detainees.
[01:04:29] LINDA GREENHOUSE:
Yeah, I mean, I think that’s a plausible, uh, interpretation, that they were just going to run out the clock and play for time, and there’s a school of thought that says that, you know, what they most cared about was buying time to conduct the coercive interrogations that were going on. Um, you know, I don’t, I don’t have a way of knowing that, but, um, you know, that they might lose in the end, but by then they would have gotten as much as they could get or what they thought they, they wanted. Um, so that’s, that’s quite plausible.
The, uh, the one set of cases that, that you didn’t mention, but I– and it’s curious that… And I know some of the reasons why they don’t come together. But the Padilla case, which, uh, es- especially dealing with your question about the mystery of Guantanamo, in a sense, it was the one case where the administration sort of backed down before they were forced to.
Uh, and, and Roberts does sort of deliver a warning shot. Uh, and we have this interesting fight with Luttig, who almost ends up on the Supreme Court for Bush, castigating the Bush administration. And then Roberts sort of saying, “Well,
[01:05:34] AUDIENCE MEMBER:
you know, we’ll let this go, but-
[01:05:35] LINDA GREENHOUSE:
Right, right,
[01:05:36] AUDIENCE MEMBER:
we’re watching.” Uh, so I’m not sure if, if, if you, if you’d care to comment on how that might fit together with-
[01:05:41] LINDA GREENHOUSE:
Well, that, I mean, if, if folks who remember that Padilla was the, you know, was the U.S. citizen detainee, um, who had a cert petition pending at the Supreme Court, and that was an instance when the administration blinked because it, it did seem likely that the Court would take that case. And just on the eve of the petition going to conference, they, um, suddenly announced after I think it would have been three or four years, that they were going to release him from military custody and have him tried in civilian court. So, um, so that’s a, that’s a good point.
I mean, that– they, they did blink in that one case. Now, how that would have turned out, you know, on, on the merits, I, I don’t know.
[01:06:26] AUDIENCE MEMBER:
Let me ask you about, uh, Justice Scalia and the Hamdi case wrote, I think, a civil libertarian dissent,
(coughs)
joined by John Paul Stevens, saying that the habeas petition was an essential check on executive power. Now, of course, Rasul, he took a different, ’cause that’s aliens. And my question is, what would Scalia or the Court do if it was a U.S. citizen in Guantanamo?
Would they have- it’s out of the jurisdiction, it’s out of the country. Could, could, could the administration plausibly put U.S. citizens in Guantanamo?
would, would they have different rights? Or how, how would Scalia handle that?
[01:07:10] LINDA GREENHOUSE:
I’m being asked this question by one of the country’s major experts on this entire matter, uh, Lou Fisher of the Congressional Research Service. So, um, uh, there’s nothing I know about this whole matter that you don’t know. Uh, so how would h- how would the Court have responded if one of the detainees at Guantanamo had turned out…
How would the conservatives on the Court have responded had a Guantanamo detainee turned out to be a U.S. citizen? Um, I assume they’d have to, they’d have to say habeas applied. I mean, I– you couldn’t get out of it by citing Eisentrager.
Um, but I think the administration was extremely careful not to have that happen. I mean, that’s why they kept Hamdi in South Carolina once they… When– I think when they originally picked him up, they didn’t realize he was a US citizen, ’cause he spent his entire life in Saudi Arabia.
I think his father had been a graduate student or something, he happened to– his mother happened to give birth to him in, I think Louisiana. But he, you know, culturally was not American. He just happened to have US birthright citizenship, um, and once they realized that, they made sure he didn’t get anywhere near Guantanamo.
Uh, let me see. Yeah.
[01:08:30] JEFF JORDAN:
Um, Jeff Jordan, Latin American studies. As I guess I could call you one of the country’s leading psychologists of the Supreme Court at this point. Did you ever feel there was any sense of urgency among any of the justices about the real people on the ground, in the cages, or was all the urgency just aimed at the retention of their own power?
[01:08:53] LINDA GREENHOUSE:
Well, I think the grant of rehearing in June of two thousand and seven in the Boumediene case, I mean, it really was… I mean, I have rarely been– By that time, I’d been covering the court for only twenty-nine years, and I had seen a lot. But, um, I wi-will never forget my shock.
They were hand… It was the last day of the term, and they were handing out, you know, the final list of orders, and it’s all very, you know, blah, blah, blah, blah. And I looked down and said, you know, “Boumediene against Bush rehearing granted.”
And I could– literally couldn’t believe my eyes. I looked at it, and I said, “I think I’m seeing this,” but I’m not confident that I really am.” And I went to the public information officer of the court and I said, “Give me a reality check.
Does this say rehearing granted?” She said, “Yes, it says rehearing granted.” Uh, and I think that reflected, uh, a sense that we’re almost certainly going to take this someday.
If we’re going to take it someday, these people have been there for five years. Uh, this isn’t washing too well, and, you know, take it now. And, and Kennedy must have been persuaded by that because it took five votes, and he had– he would’ve cast the, the the fifth vote.
So, you know, whether it reflected, um, you know, a deep sense of personal empathy, as you expressed it, or a sense that, um, you know, there were real people at stake and things were just getting out of control. I mean, at a slightly higher level of abstraction, um, you know. But I think it did reflect their concern that, um, things were just getting out of hand.
[01:10:32] HARRY SCHEIBER:
May I ask a question? I, I think that, um, the original language of I suppose the memo that you began your talk with referred to the aliens not being part of the contract. It always struck me that that was a pitch to the states’ rights conservative justices who’ve been writing from the Rehnquist days on, uh, about the Constitution as a contract of the states, the state governments, so the whole states’ rights thing.
Yeah. The other rhetorical, uh, element that really struck me as you spoke was, uh, your quotation from, um, uh, Justice Breyer, which said the courts are open, that’s a reflection of the famous Milligan case, which was in 1866 after the Civil War, in which habeas corpus and military trials were examined by the court, and the plurality opinion said, “As long as the civilian courts are open, the military has to defer.” I think that was a-
that’s a rhetorical appeal to reason. Yeah. No, that- the martial law and, and military courts had to defer to civilian courts.
Um, I don’t know how you feel about those two comments, but I also have a question. I, I, I also thought that, um, when Justice Ginsburg confronted the government lawyer and said, “You mean you can keep them in prison forever?” And they said yes.
[01:11:43] LINDA GREENHOUSE:
Mm-hmm. Mm-hmm.
[01:11:44] HARRY SCHEIBER:
I think that had to be a turning point.
[01:11:46] LINDA GREENHOUSE:
Yeah, well, well, the, uh, you know, the, um, the government pleading that said that, uh, you know, there’s really no rush the, uh, for Hamdan because even if he has a military trial and he’s acquitted, we’re still going to hold him. I, I mean, that’s what they said, and that’s certainly what they,
(coughing)
that may yet happen, you know, is… I mean, as people may remember, he was tried this summer by his military commission and was acquitted on one charge and convicted on another and given a sentence that runs until December, just on the eve of the transfer of power to the next president. And, uh, and the administration refuses to say what they plan to do when his sentence is served.
And I do not think they plan to just say, you know, adios. So, um, we’ll see
