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I’ve made no secret of my distaste for what I’ve described (okay, okay, flippantly described) as “the atmospheric punditry some have come to expect from this blog.” (Although, I must confess that, hypocritically, I do follow Lawfare intermittently and have even engaged on occasion, click on that last hyperlink or here for further proof.)
I also harbor deep admiration and respect for my friends Gabor and Steve, and for much of their work in this realm.
Last but not least on the long list of factors holding me back, I am exhausted. I only recently reached home after a grueling nine-day trip to the place at the heart of Gabor and Steve’s exchange, the infamous U.S. Naval Station at Guantánamo Bay, Cuba. As a result, part of me just wants to sink into a couch and nap, or read a book (one unrelated to these matters).
But it is perhaps the very fact that I’ve just returned from a week of meetings with the men that my students and I represent at that prison that compels this response.
Not one of those men would agree with Steve that “moving the detainees stateside likely would redound to their legal benefit.” I have learned to defer to their analysis and instincts because—notwithstanding all my love and respect for the contributors to this blog and others like it—the prisoners are the foremost experts on all matters Guantánamo-related. It is they who have the most skin in the game and the greatest stake, therefore, in tracking and dissecting developments both legal and political as well as their manifold ramifications.
It isn’t merely that I respectfully disagree with Steve’s jurisprudential prognosis from a purely technical standpoint (I do). Of course, a rejuvenated D.C. Circuit or other circuits taking up issues relating to the continuing, indefinite, military imprisonment of Guantánamo inmates brought to the United States might veer away from extant D.C. Circuit jurisprudence. But it is at least equally if not more likely that those courts might embrace and entrench that problematic body of law in the context of stateside detention.
Steve rightly points to the only extant data point regarding this sort of detention on U.S. soil, the Fourth Circuit’s al-Marri decision. But theen banc court split 5 to 4 on the key issue whether enough process had been afforded al-Marri. Also, the case was decided in 2008, before the D.C. Circuit mounted its mutiny against Boumediene, providing much grist for the mills of any would-be copycat courts reviewing the detention of Guantánamo prisoners moved stateside.
In a politically charged, fear-driven environment where timorous courts nationwide haven’t exactly distinguished themselves as the bold stalwarts of justice some might have hoped they would be, it would not be wise to bank on those same courts tacking liberal when they could instead adapt to domestic detention the far more rights-restrictive concepts developed by the old D.C. Circuit in the extraterritorial context.
Even the non-terrorism Supreme Court case Steve cites as evidence of a greater judicial willingness to confer constitutional protections on non-citizens in the United States—Zadvydas v. Davis—sets the stage for far harsher outcomes if the non-citizens in question are former Guantánamo prisoners as opposed to immigrants. Recall Justice Breyer’s dicta: “Neither do we consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security.”
At best, then, it’s a jurisprudential dice roll. Steve posits that this gamble—the odds of which he rates differently from yours truly—would inure to the “legal benefit” of any Guantánamo prisoners brought stateside. That only begs the crucial question of how one fairly defines what might be beneficial.
To agree with Steve, we’d have to accept a narrower, technical understanding of legal processes, assessing them mostly by the metric of formal outcomes, unmoored from some of their significant real world implications.
We’d also have to ignore the bitter lesson of the prisoners’ experience as the jurisprudence progressed from Rasul and Hamdi to Hamdanand Boumediene: that even the most seemingly favorable doctrinal outcomes exact a heavy price in years and do not necessarily correlate with meaningful real world results.
In other words, Boumediene, gutted as it was by the D.C. Circuit, stands mostly as a lofty—and costly—abstraction, taunting men who remain imprisoned today without charge or fair process after more than thirteen years.
So, even assuming for the sake of argument that Steve is right and that courts will eventually hold that Guantánamo prisoners enjoy greater rights by virtue of their presence on U.S. soil, it isn’t hard to see how this outcome can hardly be characterized as beneficial to the prisoners themselves, legally or otherwise, if it takes years of litigation to reach that point, as the prisoners themselves languish in stateside facilities where conditions may be even worse than they are today at Guantánamo.
For the prisoners at Guantánamo this is no academic dispute—it is quite literally a matter of life and death. Let us not kid ourselves, therefore, about whose agenda would be served by bringing those long-suffering men to the United States. That move would enable the Obama Administration to proclaim its promise to close Guantánamo fulfilled, to declare victory, and to blithely move on. The law and policy of indefinite military imprisonment would stand, largely intact and further normalized by their expansion in the domestic context. And, importantly, the prisoners themselves will be promptly forgotten as the legal issues take years more to snake their way through the federal judiciary once again.
I would add that the rule of law in our country wouldn’t stand to gain from that sort of development, either, but the calculus in decision-making circles seems far too short-sighted for that sort of argument, regrettably…
What is the best way forward, then, you ask? You’ll forgive my pulling a Scheherazade here, dear reader. We can delve into that another day for this post is already long enough and my couch beckons…
Ramzi Kassem is Associate Professor of Law at the City University of New York School of Law.