Guantanamo Bay

  • January 11, 2012
    Guest Post

    By Stephen I. Vladeck, professor of law and associate dean for scholarship at American University Washington College of Law.

    Near the end of her majority opinion in Latif v. Obama (the most recent decision by the D.C. Circuit in the Guantánamo habeas litigation), Judge Janice Rogers Brown offered the following observation:

    As the dissenters warned and as the amount of ink spilled in this single case attests, [the Supreme Court’s] airy suppositions [in Boumediene v. Bush] have caused great difficulty for the Executive and the courts. . . . Boumediene fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained—even from high-value detainees—is outweighed by the systemic cost of defending detention decisions. While the court in Boumediene expressed sensitivity to such concerns, it did not find them “dispositive.” Boumediene’s logic is compelling: take no prisoners. Point taken.

    For reasons that I elaborate upon below, Judge Brown’s disturbing lament provides an unfortunately appropriate epigraph to mark the tenth anniversary of the detention of non-citizens without trial at Guantánamo.

    Let’s begin with Judge Brown’s suggestion that the “airy suppositions” in Boumediene “have caused great difficulty for the Executive and the courts.” Because the Boumediene Court left the details of habeas review to the lower courts, the only “airy supposition” to which she can be referring is the underlying requirement that the federal courts provide detainees at Guantánamo with a meaningful opportunity to contest the legality of their detention before a neutral decision-maker. Never mind that, according to the Boumediene majority, it is the Constitution itself that requires such an opportunity; as a pure policy matter, why shouldn’t we want the government to have to explain the basis for holding individuals for 10 years or longer without ordinary adjudications of their guilt (or, at the very least, of their ongoing dangerousness)?

    The answers Judge Brown suggests are because such adjudications (1) interfere with the Executive Branch; and (2) “cause[] great difficulty” for the courts. To the former, that certainly isn’t the position of the Obama administration. Indeed, one could perhaps argue that judicial review bolsters such detention by lending a judicial imprimatur to detention in cases in which the government prevails in the courts. Whether or not that’s a convincing rejoinder, though, Judge Brown offers no explanation for how judicial review otherwise interferes with the Executive Branch in any way more burdensome than requiring it to provide minimal evidence satisfying a fairly broad detention standard (especially under the D.C. Circuit’s case law) behind closed doors. One need look no further than the Latif decision itself to see the pains to which the courts have gone to keep sensitive information out of the public record, and there are to date no documented examples of sensitive information being improperly disclosed in the context of the Guantánamo habeas litigation.

  • May 26, 2011
    Infringement Nation
    Copyright 2.0 and You
    John Tehranian

    By John Tehranian, the Irwin R. Buchalter Professor of Law at Southwestern Law School and the Biederman Entertainment and Media Law Institute in Los Angeles, California, and a founding partner of One LLP.

    Shortly after taking office in 2009, President Barack Obama announced that he would end the use of Guantanamo Bay as a detention camp for enemy combatants in the war on terrorism.  Although it appears increasingly unlikely that the President will achieve this goal any time in the near future, the eventual closing of the facility would potentially do away with a number of controversial policies.  Of those practices, one of the more unusual was the military’s arguably infringing use of music on the prisoners. The soundtrack to Guantanamo Bay, it turns out, was replete with copyrighted songs meant to addle and unnerve, especially on repeat. And, apparently, the government lacked an appropriate license to publicly perform these songs. 

    As a preliminary matter, the playlist at Guantanamo — at least during the Bush years — was, according to press reports, filled with curious choices. For example, it included Fuck Your God — a particularly bizarre selection considering the Bush Administration’s religiosity and the federal government’s position, through the FCC, on the use of indecent language in other contexts. Guantanamo Bay’s Top Ten List — the songs most frequently played to interrogate prisoners — featured a perverse smorgasbord of heavy metal, children’s music, and (seemingly) patriotic stadium rock:

  • April 14, 2011
    Habeas Corpus after 9/11
    Confronting America's New Global Detention System
    Jonathan Hafetz

    By Jonathan Hafetz, a law professor at Seton Hall Law School who has litigated a number of leading national security habeas corpus cases.  

    Following his inauguration, President Obama ordered the closure of the U.S. prison at Guantanamo Bay within one year. More than two years later, however, Obama’s plan to close Guantanamo is in shambles. More than 170 prisoners remain at Guantanamo, and new legislation makes it extremely difficult to transfer additional prisoners from the naval base. Defense Secretary Robert Gates recently called the prospects for closure “very, very low,” and the administration is pressing ahead with new military commission trials at the base. In many ways, the United States is further from closing Guantanamo now than it was after Obama’s inauguration.

    Guantanamo has always been more than a prison. It is also the symbol of a new, alternative detention system that denies prisoners the full protections of America’s criminal justice system. Guantanamo’s continued existence reflects not merely America’s failure to close this notorious prison, but its acceptance of the larger system the prison embodies.

    Even as Obama vowed to close Guantanamo, he indicated that he would continue to use “military commissions,” pledging to reform the fatally flawed war crimes tribunals rather than end them. The administration’s decision to abandon the federal criminal prosecution of Khalid Shaikh Mohammed and four other alleged 9/11 plotters in favor of military commissions demonstrates the power this alternative system exerts over U.S. counter-terrorism policy. Obama has likewise endorsed another key feature of Guantanamo: the indefinite detention of some terrorism suspects without trial. His recent executive order creating a new review board to periodically examine their cases demonstrates how deeply this practice has become institutionalized. The question, in short, is not whether the post-9/11 detention system will continue (it will), but what form it will take and how broadly it will sweep.

  • March 17, 2011
    Habeas Corpus in America
    The Politics of Individual Rights
    Justin J. Wert

    By Justin J. Wert, an assistant professor of political science at the University of Oklahoma.
    On March 7, 2011, President Barack Obama signed an executive order authorizing military commissions to begin again at Guantanamo Bay after a two-and-a-half-year hiatus. But while the President's order reminded the country of his now-hollow promise to close down Guantanamo within his first year in office, it also served to remind us of the political and legal debates over the writ of habeas corpus that ensued immediately after the first detainees were brought to Camp X-Ray in January 2002. Indeed, the President's Executive Order states clearly that:

    Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.

    Habeas Corpus in America: The Politics of Individual Rights accounts for the development of one of the most important - but least understood - components of American constitutional law. Scholars, legal practitioners, politicians, and citizens alike, hold deeply divergent views about the writ's historical development and normative function.

    To complicate matters even more, almost all existing studies of habeas divide their analysis of the Great Writ of Liberty into so-called "extraordinary" periods (like war and crisis) and "ordinary" periods (like its evolving use as a remedy for challenging criminal convictions in the United States), making it even more difficult to imagine a systemic and coherent account of the writ's role in American political development more generally. As a result, we still tend to ask very different questions - and therefore always produce very different answers - about habeas' function in American constitutional law, theory, and history.

  • February 1, 2011
    Guest Post

    By Barry Eisler, an award-winning author of bestselling thrillers. Eisler spent three years in a covert position with the CIA's Directorate of Operations and has worked as a technology lawyer. Eisler also blogs on torture, civil liberties and the rule of law. 
    Here's what I thought when I heard the Conservative Political Action Conference has decided to honor former Secretary of Defense Donald Rumsfeld with something CPAC calls the "Defender of the Constitution Award."

    As I imagine CPAC is aware, Rumsfeld is the man who signed the very first memo authorizing the torture techniques that later became infamous with the revelations of photos from Abu Ghraib prison. Philippe Sands wrote the definitive book on the subject; it's called "Torture Team: Rumsfeld's Memo and the Betrayal of American Values." The topic is also thoroughly covered in the bipartisan report of the Senate Armed Services Committee, "Inquiry into the Treatment of Detainees in U.S. Custody," which concluded: