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The U.S. Supreme Court has already recognized the detainees’ right to challenge their detention in court (habeas corpus), but has indicated no appetite for reviewing lower court decisions that have eviscerated that right by refusing to require the government to provide convincing evidence or to enable detainees to see and effectively challenge the government’s evidence. If the detainees are moved stateside, the same courts will likely continue to apply the same standards.To understand why I believe this nihilistic reaction is incorrect, it's worth revisiting three different assumptions reflected in Gabor's analysis: (1) that it will be the "same courts"; (2) that they'll apply the "same standards"; and (3) that, as he writes later in the post, they'll be no more likely to take seriously temporal challenges to detention authority than they would from Guantánamo detainees. I take these each in turn, before tackling the elephant in the room: I. "The Same Courts" Gabor assumes that, if the detainees are moved stateside, their legal challenges will be resolved by the "same courts." In two respects, I believe this is completely mistaken. First, and doctrinally, there's the "immediate custodian" rule articulated by the Supreme Court in Rumsfeld v. Padilla, which requires anyone detained within the United States to sue their immediate custodian (which, as a result of personal jurisdiction rules, has the effect of all-but requiring the suit to be brought in the district in which the detainee is held). Unless Congress were to override this rule by statute, that means that detainees held in, say, Thomson, Illinois, would have to pursue new claims there, and not in the D.C. district court. (Contrary to popular belief, the D.C. courts only exercise de facto exclusive jurisdiction over the Guantánamo habeas cases--not de jure.) So right off the bat, there's a decent chance that it would be the U.S. District Court for the Northern District of Illinois and the U.S. Court of Appeals for the Seventh Circuit that would get at least some of these cases--courts not in any way bound by the existing Guantánamo jurisprudence of the D.C. Circuit. The D.C. courts could still exercise jurisdiction over pending cases without violating the immediate custodian rule, but given that res judicata doesn't apply to habeas, nothing would stop detainees from voluntarily dismissing their pending cases and re-filing in the new forum. Second, and practically, even if Congress overrules the immediate custodian rule as part of any statute that allows the detainees to be moved stateside (since, at a minimum, it would have to repeal the transfer restrictions), and left these cases in the D.C. Circuit, today's D.C. Circuit bears increasingly little resemblance to the one that handed down the key Guantánamo rulings, e.g., al-Bihani, al-Adahi, al Odah, Salahi, Almerfedi, and Latif. With four new judges appointed by President Obama (and a 7-4 majority of active judges in favor of those appointed by Democratic Presidents), I think it's safe to say that the D.C. Circuit that would hear such stateside detention cases would be a very different bench from the one that handed down those earlier rulings. Not just different; today's D.C. Circuit could only be more sympathetic to the Guantánamo detainees (it couldn't be any less sympathetic, after all). So whether formally or functionally, right off the bat, it wouldn't be the "same" courts. II. "The Same Standards" Gabor also assumes that, whichever courts hear habeas petitions from stateside detainees will apply "the same standards" as those articulated by the D.C. Circuit in the Guantánamo cases. I couldn't disagree more strongly. As I've written before at some length, the heart of the D.C. Circuit's jurisprudence in this field stems from its misbegotten view that the detainees have no--or incredibly minimal--due process rights, and that the Supreme Court's discussion of a detainee's due process rights in Hamdi v. Rumsfeld had everything to do with the fact that the petitioner was a U.S. citizen. Thus, the "preponderance" standard articulated in al-Bihani; the excessive tolerance for "hearsay" evidence; the reliance on "conditional probability analysis" in al-Adahi; and the "presumption of regularity" in Latif would all be vulnerable in cases in which the detainees could claim stronger due process protections. Don't take my word for it, though; look at how the en banc Fourth Circuit approached the due process question in the al-Marri case--the one post-9/11 case of a non-citizen held within the United States. The judges fractured on exactly how much process was due, but even most of those judges who were more sympathetic to the government would have required a greater showing than that required by the D.C. Circuit's current jurisprudence. To be sure, I'm assuming that courts would recognize that, once moved stateside, the detainees were entitled to greater due process protections. But I feel fairly comfortable defending this assumption especially in light of al-Marri and other non-terrorism cases in which the Supreme Court has shown greater willingness to confer constitutional protections on non-citizens within the territorial United States who lack legal status. Nor does Gabor offer any reason to believe that courts would hold to the contrary. To put the matter bluntly, I think it quite possible, if not likely, that any court entertaining habeas petitions from former Guantánamo detainees held within the territorial United States would find itself not bound by all of the D.C. Circuit's procedural and evidentiary rulings in the Guantánamo cases to date, based upon the conclusions that (1) those rulings flowed directly from that court's dim view of the detainees' due process rights; and (2) stateside detainees are entitled to greater procedural protections. And, to be clear, I suspect that this analysis--and not hyperbolic concerns over the threat detainees held in supermax prisons would pose to local populations--is why so many members of a particular political party are so vehemently opposed to moving the detainees stateside. Readers can decide for themselves whether that's a legitimate reason to prevent the President from making such a decision for himself; I have my doubts. III. "End of War" Challenges Finally, Gabor takes aim at what's likely to become the dominant substantive question in the next generation of habeas cases from the Guantánamo detainees, wherever they're held: Whether the government's detention authority might wane (or affirmatively expire) as the conflict in Afghanistan (and against al Qaeda and the Taliban) winds down. In Gabor's view, there's no reason to believe that courts will be more sympathetic to such a claim from a detainee located within as opposed to without the United States. Although I think there's at least some merit to this assumption (as opposed to the first two assumptions debunked above), I think it can't be fully assessed without taking into account the differences identified above--different courts applying different standards. In other words, Gabor may be right that the substantive scope of the government's detention authority shouldn't differ as between detainees held outside versus inside the United States (although it probably should differ as we get increasingly far away from when--and why--the AUMF was enacted). But having that question answered by different courts applying more rigorous procedural and evidentiary standards stands, in my view, a far-greater-than-frivolous chance of producing a different result. Indeed, Justice Breyer himself flagged this issue as an open question last summer in a statement respecting the denial of certiorari in a Guantánamo case. IV. Setting a Bad Precedent Instead, what I suspect Gabor is truly worried about is a concern that I hope we all share (and that I and my colleague Jen Daskal have both openly worried about): That some kind of "grand bargain" will be struck wherein the detainees are moved stateside in exchange for the Obama Administration endorsing an administrative--as opposed to military--detention regime. As Gabor writes,
In a less fear-driven America, that should ultimately be held unconstitutional despite the support of the Executive and Congress. In today’s America, the Supreme Court’s verdict is anybody’s guess. Is the benefit of moving detainees to a new zip code worth the risk of ensconcing Guantanamo’s injustices into general U.S. law? The question answers itself.Yes, that question answers itself. But note the assumption--that any such regime would necessarily set a precedent that could be used in future cases having nothing to do with Guantánamo. I've tried very hard to explain in detail exactly how such a deal could be struck in a manner that would not set such a precedent--and that could probably be cabined to the "legacy" cases involving the small number of truly "un-releasable" Guantánamo detainees. Reasonable people, including Gabor, may well disagree with my analysis. Or they may disagree with the normative desirability of such a compromise solution. But there's a difference between arguing that we shouldn't pursue such a solution and arguing that no such solution is even hypothetically available. Just to be clear, I aspire to Gabor's worldview--and to a world in which we aren't subjecting any individuals to long-term detention without trial. There's a critical difference, however, between desiring such a result and viewing it as the only alternative to the status quo. As I've endeavored to demonstrate above, one does not have to share our goal to believe (1) that Guantánamo can and should be closed; or (2) that moving the detainees into the United States is almost certainly better from most perspectives (including the detainees')--and is definitely no worse--than leaving them there in perpetuity.