The Courts Can’t Fix Guantanamo

The New Republic, February 22, 2007

Amnesty International calls it “shocking” and insists it “must be challenged.” Human Rights First complains that it “runs counter to one of the most important checks on unbridled executive power enshrined in the U.S. Constitution: the right to challenge imprisonment in a full and fair proceeding.” So, at the risk of marking myself as a supporter of unbridled executive power and an opponent of the rule of law, let me confess that I have no serious problem with this week’s opinion by the D.C. Circuit Court of Appeals on detentions at Guantánamo Bay, Cuba.

The court held both that Congress–not the executive branch–stripped the courts of jurisdiction to hear lawsuits from detainees at Guantánamo, and that it had the constitutional power to do so. As a legal matter, the decision is correct. And, if and when the Supreme Court reverses it, as it may do, the decision won’t be any less correct. The reversal will signify only that a majority of justices no longer wishes to honor the precedents that still bind the lower courts.

As the case heads towards the Supremes, you’ll no doubt hear a lot about suspension of the Great Writ of habeas corpus–the ancient device by which courts evaluate the legality of detentions. And you’ll also hear a lot about Guantánamo as a legal “black hole.” It’s all a lot of rot, really, albeit rot a majority of the justices might well adopt. Cut through it, and Guantánamo poses a set of difficult policy problems, not legal ones. And, while judges have a role in the solution to those problems, that role isn’t the one most liberals seem to want them to play.

Until the advent of the war on terrorism, nobody seriously believed that the federal courts would entertain challenges by aliens who had never set foot in this country to overseas military detentions–or, at least, nobody thought so who had read the Supreme Court’s emphatic pronouncement on the subject. “We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction,” the Court wrote in 1950. “Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.”

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