Andrew McCarthy Writes A Special Analysis for MAF
This blog post is really special. We were doing the presser for our Gitmo ad and we really wanted and expert opinion so we asked Andrew McCarthy of National Review and he wrote us this amazing piece which gives us another perspective - this one coming from a policy expert - on Guantanamo Bay.
If the Guantanamo Detainees Are Transferred Into the U.S.
By Andrew C. McCarthy
At the moment, alien enemy combatants are being held by the military outside the territorial jurisdiction of the U.S. courts. Prior to 2004, that meant (a) the federal courts had no authority over the combatants, and (b) the combatants did not have any rights under the U.S. Constitution because they are not American citizens, they do not have any lawful immigration status in the United States, and they were not in the United States, where even illegal aliens are deemed to have some core constitutional rights.
In the 2004 case of Rasul v. Bush, the Supreme Court ruled that federal courts do have jurisdiction over the U.S. naval facility at Guantanamo Bay, Cuba. (Unique facts provide the U.S. with an unusual degree of de jure as well as de facto control over Guantanamo Bay. Consequently, it is not yet clear whether (a) the Court’s ruling is peculiar to the military detention center in Cuba, or (b) the Court’s logic will extend federal court jurisdiction to other places in the world where the U.S. government operates.)
In the 2008 case of Boumediene v. Bush, the Supreme Court ruled that detainees held by the military in Guantanamo Bay as alien enemy combatants are vested with the right to habeas corpus (i.e., the right to contest the legality of their detention in federal court) under the U.S. Constitution. It is not yet clear whether the Court’s rationale means that (a) alien detainees have only the constitutional habeas right, or (b) alien detainees are vested with other constitutional rights as well.
The Boumediene case did not prescribe any procedure by which detainee challenges to detention should be resolved. In our system, it is generally the obligation of Congress to prescribe the rules and procedures that apply in proceedings before the federal courts. Yet, despite pleas for assistance by the Attorney General, Congress has failed to act. Indeed, it has failed even to enact legislation making it clear that those detained as alien enemy combatants—many of whom have received terrorist training in al Qaeda-affiliated camps—may not be released in the United States in the event judges determine there is not enough evidence to hold them as enemy combatants.
Congress’s abdication of its responsibility is this crucial area—despite its years of complaining that the Bush administration was making war policy unilaterally—has left it to the lower federal courts to fill the void: crafting their own rules, procedures, and remedies on an ad hoc basis, as issues arise in detainee litigation.
As noted above, Boumediene, the precedent that is now the basis for all detainee habeas litigation, held that detainee habeas rights are rooted in the Constitution. As a result, it will inevitably be claimed that whatever procedural rights the lower courts afford to the detainees (e.g., rights to discovery of government intelligence files, to assistance of counsel, to hearings that may closely resemble full-blown criminal trials, to release, etc.) are also rooted in the Constitution. This is an alarming prospect. When rights are based on statutes, Congress may alter or rescind them as circumstances warrant. But because the courts are deemed to be the final word on the meaning of the Constitution, it is difficult if not impossible for Congress to amend or reverse a judicial ruling that the courts say is rooted in the Constitution.
As long as the detainees continue to be held outside the United States, there will be a strong argument (albeit not necessarily a winning argument) that Boumediene provided alien detainees only with habeas rights, not with any other constitutional rights. Generally speaking, non-Americans outside the United States are not entitled to American constitutional rights—and certainly not to the full run of legal rights afforded to U.S. citizens who are accused of crimes
The detainees’ habeas rights would be satisfied merely by permitting them access to federal court to challenge their detention. If the courts were to determine a detainee was being improperly held as an enemy combatant, he could then continue to be held until the U.S. found a country willing to accept the detainee (and to which the U.S. could extradite the detainee consistent with our obligations under international law to refrain from transferring people to countries where they are likely to face persecution).
While the detainees are held outside the U.S., it is a favorable situation for Congress to fill the void left by Boumediene by (a) prescribing rules and procedures for detainee habeas challenges in the federal courts, and (b) enacting law that makes it clear that, regardless of where they are held, detainees have no right to seek asylum in, or otherwise be released in, the United States. Again, upon a judicial determination that an alien detainee is not an enemy combatant, that detainee would continue to be detained until the U.S. found a country willing to accept the detainee.
If the detainees are brought into the U.S., especially under circumstances where Congress continues to abdicate its responsibilities:
• The courts are likely to fashion procedural rules far more favorable to the detainees than Congress would. Because judges are not politically accountable to the American people whose lives are at stake in the war, and because their task is to maximize fairness to the litigants before them not to protect national security, they naturally tend to give undue weight to the rights of suspected terrorists over concerns about success in the war and the safety of Americans.
• Detainees will claim that their lawful presence in the United States entitles them to all the rights afforded to criminal defendants charged in the civilian justice system.
• Judges are very likely to abandon any restraint caused by reading Boumediene narrowly as an unprecedented judicial intrusion into U.S. military operations overseas. Once the detainees are inside our borders, judges will view them as judges view other alien litigants, who are routinely given broad protections in litigation against the government.
• Detainees, and particularly any detainees judicially determined not to be enemy combatants, will claim a due process right to be released in the United States pending hearings, trials, or deportation/extradition.
Andrew C. McCarthy is the legal-affairs editor
at National Review and the author of the national bestseller
Willful Blindness: A Memoir of the Jihad (Encounter Books 2008).