“Easily Administrable” Human Rights Violations

*Cross-posted from Balkinization

If the Bush administration were honest, the government’s brief to the Supreme Court in the Guantanamo detainee cases (Boumediene v. Bush and Al Odah v. United States, to be argued Wednesday) would have said something like this. We admit that for the last six years, we have behaved badly. Very badly. We mistakenly denied hundreds of prisoners any protections under the Geneva Conventions. We then deliberately brought them to Guantanamo to evade judicial review. We engaged in highly coercive interrogations that often approached, and in some instances constituted, torture. After you rejected our position 3 ½ years ago in Rasul v. Bush, we ignored the message. Rather than providing the detainees fair hearings, we set up sham military proceedings, stonewalled district judges, and waited for Congress to bail us out. We don’t deserve to stand here today and argue against habeas corpus rights for these prisoners.

But honesty has never been this administration’s strong suit. Instead, the administration has the hubris to defend the habeas-stripping provisions of the Detainee Treatment and Military Commissions Acts by extolling the virtues of a bright line rule limiting fundamental constitutional protections to U.S. sovereign territory. That line, of course, conveniently excludes Guantanamo (as well as Bagram Air Base in Afghanistan, secret CIA-run prisons (or “black sites”), and other places that the United States continues to imprison people without due process in the name of its “war on terror”). Sovereignty, the government argues, provides an “easily administrable” test. In other words, it lets the Executive branch know in advance where it can detain and interrogate without judicial review on the one hand, and gives judges an excuse to turn a blind eye on the other.

The Supreme Court is likely to reject this argument. Rasul’s holding may have been statutory, but both Justice Steven’s opinion for the Court and Justice Kennedy’s concurring opinion strongly support the existence of a constitutional entitlement to habeas corpus and due process for prisoners at Guantanamo. The Court noted several reasons why a different constitutional analysis was required at Guantanamo than in Johnson v. Eisentrager. It also made clear that formal constructs like sovereignty did not determine the territorial ambit of the common law writ (which Suspension Clause protects), a point we reiterate in this legal historian’s amicus brief and Paul Halliday and G. Edward White make in this important article. In addition, the Court appeared in Rasul’s footnote 15 to endorse the Justice Harlan’s “impracticable and anomalous” test for determining the application constitutional rights abroad. (And no place could it be less “impracticable” or “anomalous” to extend basic safeguards against unlawful detention than a U.S. enclave like Guantanamo where, as Justice Souter pointed out in Rasul, even the iguanas are protected). Justice Kennedy similarly emphasized the degree of U.S. control over Guantanamo and the Guantanamo detainees’ indefinite confinement without lawful process in distinguishing Eisentrager and suggesting a constitutional entitlement to habeas corpus So, the real question in Boumediene/Al Odah is not whether the Court will find that Guantanamo detainees’ are protected by the Constitution but how it will reach that conclusion.