The Supreme Court this week issued two decisions on detainee policy in Guantanamo Bay, Cuba and Iraq. The first has been correctly hailed as a watershed rejection of the Bush Administration’s effort to establish national security policies free of law, while the second has been largely overlooked. Since I am one of the counsel in that second case – which concerns two US citizens of Arab descent who have been detained by US forces in Iraq for more than three years – I cannot overlook the second case, especially because the Court concluded that the government has power to hand our clients to Iraqi authorities where they may be tortured and executed.
The contrast between the two cases bears closer scrutiny, and calls for caution even as celebration of the Guantanamo decision continues. For even though the Court has rejected the Administration’s position that the island base is a lawless enclave, where individuals can be imprisoned and denied the chance to challenge the basic facts behind their detention, it has paid less attention to the risk of human rights violations in a less high-profile context.
Guantanamo has become the focus for international condemnation of the Bush Administration’s cavalier attitude to human rights and basic freedoms. Calls for the base’s closure – now echoed by both presidential candidates – reflect a consensus that the base inflicts too high a reputational cost on America. To be sure, the wretched human rights record of the base plays a role. But the disparity between the presidential commitment to closing Guantanamo, and the candidates’ silence on equally disturbing and harmful practices such as “extraordinary rendition” is telling: Human rights may matter less than how the world views a practice.
The Boumediene v. Bush case, which was decided on Thursday by the Court, concerned the narrow but critical issue of whether the detainees have access to “habeas corpus”: the traditional legal remedy for unlawful executive detention. In two statutes, enacted in 2005 and 2006, the US Congress had purported to extinguish the right of detainees at Guantanamo to the habeas remedy, and to replace it with a different legal remedy – albeit one with a crucial difference. Under the new statute, a detainee had only limited authority to challenge the facts on which his detention was based. In particular, he could not argue that the military had failed to take note of exculpatory information, i.e., information that showed his innocence.
To defend this new regime, the Administration made two arguments: First, that the detainees were not entitled to the protection of habeas corpus, which is enshrined in the US Constitution, because they were outside the territory of the United States. The Court rejected this argument, which would have basic rights stop whenever the Administration labeled a territory as non-US. “The test” for habeas protection, wrote Justice Anthony Kennedy, “must not be subject to manipulation by those whose power it is deigned to restrain.”
Second, the government argued that the new statutory remedy was adequate as a substitute for the habeas remedy. Again, the Court rejected this argument, pointing to the need to contest facts as the basis for a meaningful hearing.
The Court, however, pointedly did not address the hard questions of who can be detained, and what exact procedures will be used after the cases are remanded to the district courts to make factual and legal determinations. The first question – i.e., who falls into the category of “enemy combatant” – is especially important to the issue of who will remain detained even after their habeas hearing.
The Court’s Boumediene decision, in short, is about the power of the courts to review—and not what standard the courts will use when they do assess the legality of a detention decision.
By contrast, the other case decided yesterday (Munaf v. Geren) concerns both the power of the courts to review detention operations and the substance of its review. In two cases concerning US citizens detained in Iraq, and threatened with transfer to Iraqi authorities for trial, long with possible torture and execution – the Court rejected the government’s argument that no review was available, but help that even when review was available, no relief would issue.
The Administration in this case had argued that the fact of UN authorization for the Iraq operation meant that any detention in Iraq was the responsibility of the UN, and not the US – even if it was conducted exclusively by US officials. This would have been a dangerous ruling, and the Court properly dismissed it entirely.
But the Court accepted the government’s other argument – that as a matter or prudence it would be better not to give relief to individuals who were detained in Iraq and against whom Iraqi criminal proceedings were pending. Nevertheless, the Court left open the possibility of additional challenges based the risk of torture.
This is deeply regrettable, because it blinks the grave and substantial risk of torture and unfairness in Iraqi proceedings. It short-changes the rights of US citizens in the name of diplomacy. And it undercuts the incentives of the executive branch not to collaborate with governments that torture since in many cases that information will not be available to detainees.
The contrast between the two cases – and the public reaction to the two cases – is striking. In the case that is in the public eye, where the reputation of the US is on the line, the Court steps up to the plate. But in the low-profile case, the Court doesn’t risk confronting the executive. And this despite the fact that, as the Court notes, there are 24,000 detainees in Iraq. Although only two are US citizens, many of the Iraq detainees are held in terrible conditions. There are persistent problems with torture and abuse in the Iraqi justice system, as even recent State Department reports suggest. But these are note issues clearly in the public eye.
(Photo: Keith Ivey via flickr under a Creative Commons license)
Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice at NYU and is co-author of “Unchecked and Unbalanced: Presidential Power in a Time of Terror.”