A War Like No Other (17 page)

In October 2006, as part of the Military Commissions Act, Congress once again amended the habeas statute. It made the ban on habeas applicable to all persons held as unlawful enemy combatants, regardless of where they might be held, and also made it abundantly clear that the ban was applicable to all pending cases “without exception.”
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In reviewing this measure in a case arising from Guantánamo, the court of appeals acknowledged the applicability of the ban on habeas to the case before it,
even though it had been pending at the time of enactment. The court went on to uphold the ban, once again denying that the Guantánamo prisoners had any constitutional rights that might be protected by the writ.
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Finally, in June 2008—more than six years after the prison opened—the Supreme Court ruled in
Boumediene v. Bush
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that the Guantánamo prisoners were entitled, as a constitutional matter, to have their imprisonment reviewed by a writ of habeas corpus. But the majority opinion, written by Justice Kennedy, failed to address the view of the court of appeals that denied the protection of the Bill of Rights to foreign nationals being held abroad.

Justice Kennedy’s opinion in
Boumediene
depicted the provision of the Constitution protecting the writ of habeas corpus as an instrument of separation of powers.
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He saw separation of powers as furthering freedom in general, but on his account freedom was only a residue.
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Freedom was not a right directly conferred on the Guantánamo prisoners by the Constitution or Bill of Rights but was derived from any habeas court decision holding that a prisoner was not an enemy combatant and thus could not be lawfully imprisoned by the executive.
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Justice Kennedy did not declare that the Guantánamo prisoners enjoyed the protection of the Bill of Rights—protections that might enable a Guantánamo prisoner determined in a habeas proceeding to be an enemy combatant to challenge prolonged detention without trial or the use of military commissions to try him for whatever he had done in the war, or to protect against the use of so-called “enhanced interrogation techniques” (torture). Remarkably, all of that was left for yet another day.

The limitations of the
Boumediene
decision were also evident in the test Kennedy announced for determining when habeas would be available. He did not find, as he might have, that the writ must be available whenever or wherever a prisoner is held in a secure detention facility by an American official but rather
made his decision turn on a multivariate test. According to Kennedy, the availability of the writ depended on (1) the citizenship of the prisoner, (2) the prisoner’s status, (3) the adequacy of the process through which his status was determined, (4) the nature of the site of apprehension, (5) the nature of the site of detention, and (6) the practical difficulties in resolving the prisoner’s claim of freedom.
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Of course, we have become accustomed in the law to multivariate tests, but usually, as with the famed
Matthews v. Eldridge
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test, the various factors are meant to pursue or serve a single unifying principle. Some factors identified in
Boumediene,
by contrast, bore little relation to the separation-of-powers principle that was allegedly the foundation of the decision. As a result, no one could tell how the test might apply to other detention facilities abroad, such as the one maintained by the United States at the Bagram Air Field, an air force base in Afghanistan, which was also used to detain suspected terrorists and, at the time, held close to six hundred prisoners.

The War on Terror, Continued

On November 4, 2008, only months after the
Boumediene
decision, Barack Obama was elected president of the United States. There was reason to believe that Obama might repudiate many of the Bush policies that offended the Constitution: Obama had campaigned on a platform that promised change, and many understood that promise to reach Bush’s counterterrorism policies. Obama gave further credence to this hope when, in his inaugural address, he rejected the notion that the fight against terrorism required us to betray our ideals. For the most part, however, Obama has not been true to his promise. Although he withdrew the last combat troops from Iraq in August 2011 and is scheduled to end the U.S. military presence in Afghanistan by the end of 2015, and although he has been meticulous in avoiding the use
of the phrase “War on Terror,” Obama has frequently declared that we are at war with al-Qaeda and the Taliban, and in the name of these wars has continued many of the unconstitutional policies of Bush.

As his first piece of business, Obama issued an executive order banning torture.
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He thus reaffirmed the constitutional principle codified by McCain’s addition to the Detainee Treatment Act of 2005 and removed the doubt created by the statement Bush had made on signing that act. Obama also minimized the risk of torture by issuing orders that same day closing the secret prisons maintained abroad by the CIA—the so-called black sites
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—and requiring the CIA to follow the Army Field Manual when interrogating suspects.
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Yet Obama quickly brushed aside calls for criminal prosecutions and truth commissions to investigate the abusive interrogation practices of the previous administration. After a public outcry, his attorney general opened an investigation on a CIA interrogator accused of going beyond agency guidelines.
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The alleged crime was not waterboarding, which appears to have been authorized by higher officials—perhaps, if his memoir is to be believed, by Bush himself. Rather, the agent was accused of threatening a hooded and shackled prisoner with imminent death first by revving an electric drill near the prisoner’s head and then by cocking a semiautomatic handgun in the same position. The investigation of this rogue agent was opened in August 2009 and came to naught. For the most part, the president has insisted, even with as gross an offense as torture, that he is interested in the future, not the past, without understanding that how one treats the past partly determines what will happen in the future.
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Obama can also be faulted for seeking to block any judicial inquiry into the practice of extraordinary rendition, even in cases in which it is alleged that the suspected terrorist in the
custody of the United States was handed over to a foreign ally for interrogation under conditions of torture. In two notable instances, one in the Ninth Circuit and the other in the Second Circuit, the Obama administration sought to block judicial inquiries into renditions conducted by the Bush administration. These proceedings were brought by victims of rendition and were pending before appellate courts when Obama took office. In one, Obama’s lawyers relied on the state-secrets doctrine, transforming what was originally an evidentiary privilege into a de facto grant of immunity to the CIA.
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In the other, his lawyers claimed that any judicial inquiry into the practice of extraordinary rendition would compromise the executive’s authority over military and foreign affairs.
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In contrast to Bush, Obama has been reluctant to treat the United States as part of the battleground against al-Qaeda and the Taliban. Accordingly, he placed within the ambit of the criminal justice system two terrorist suspects who were seized in the United States on his watch. One was an American citizen attempting to detonate a bomb in Times Square
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and the other a citizen of Nigeria attempting to detonate a bomb on a Northwest Airlines flight as it was about to land in Detroit.
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Yet Obama invoked the war exception to the principle of freedom as the basis for continuing the imprisonment without trial of prisoners being held in Guantánamo and at the Bagram Air Field in Afghanistan. Bush had claimed this power as commander in chief. Anxious to avoid the unilateralism of Bush, Obama did not invoke his authority as commander in chief to justify this policy but relied instead on the statute passed by Congress immediately after 9/11, which did no more than authorize the president to use force in responding to the terrorist attacks on that day.

Although on occasion Bush tried al-Qaeda suspects in civilian courts, he also claimed the authority to try some before military commissions and did so without announcing the criteria
to govern the choice between tribunals. Obama has claimed the same authority. Obama made headlines when he first announced that he would try the alleged mastermind of 9/11, Khalid Sheikh Mohammed, in the Southern District Court of New York,
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but the controversy that erupted over this announcement should not blind us to the fact that Obama is prepared to try some of the Guantánamo prisoners before military commissions and, in fact, is now trying Khalid Sheikh Mohammed in that way. Unlike Bush, Obama announced criteria for governing the choice of tribunal, but these criteria were stated at such a high level of generality as to compromise their capacity to constrain that choice.

As a senator, Obama voted against the Military Commissions Act of 2006, which not only barred habeas corpus but authorized the use of military commissions to try foreign nationals being held as unlawful enemy combatants.
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As president, Obama sponsored the Military Commissions Act of 2009.
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Admittedly, the principal purpose of this legislation was to strengthen the evidentiary rules governing military commissions. Under this statute, all coerced testimony was barred, the accused was given a reasonable opportunity to obtain evidence and witnesses, the government’s obligation to disclose exculpatory evidence was expanded, and the accused was given the right to examine any evidence offered at trial. Moreover, the political officer convening a military commission was prohibited from punishing members of the commission for any of their rulings.

Still, the basic structural shortcoming of the commission—trial by military officers—persists. Indeed, the 2009 act, building on Bush’s initial executive order of November 2001 and the Military Commissions Act of 2006, represents a further institutionalization of military commissions as an irregular alternative the executive might choose—based on criteria we will never know—for the prosecution of unlawful—or now
unprivileged—enemy combatants. Much like the 2006 act and Bush’s November 2001 executive order, the 2009 act defined the offenses that could be tried before a commission to include crimes, such as giving material aid to a belligerent, that could not properly be considered crimes under the laws of war.
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The irregular nature of these military commissions was underscored by a provision in the 2009 act, also present in the 2006 act and the 2001 executive order, confining them to the trial of foreign nationals.

Obama has sought to follow through on his promise to close Guantánamo. In December 2009, he announced his plan to transfer the remaining Guantánamo prisoners to a prison in Thomson, Illinois. This plan encountered congressional resistance and has not yet been implemented. It should be emphasized, however, that once Obama decided, as he did in May 2009, to continue the practice of using military commissions for the trial of some of the Guantánamo prisoners and to continue the policy of holding other Guantánamo prisoners for prolonged, indefinite detention without trial, the closing of Guantánamo has become a gesture of doubtful significance. Guantánamo became an object of public controversy and disapprobation not just because it was viewed as a site where prisoners were tortured but also because Bush had planned to use military commissions to try some of the prisoners being held there and to continue the imprisonment of others being held there without affording them a trial of any type.

The notoriety of Guantánamo had also arisen because Bush insisted that it lay beyond the reach of habeas corpus. It had become something of a legal black hole.
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The
Boumediene
decision, in June 2008, relieved Obama of the need to take a position on the availability of the writ of habeas corpus to the Guantánamo prisoners—the Supreme Court rejected Bush’s position—but Obama has tried to limit the scope of that ruling,
and in so doing further denied the act of closing Guantánamo of much of its meaning. Obama’s lawyers argued in open court that the
Boumediene
decision should be confined to Guantánamo alone and that the prison at Bagram—to which terrorism suspects from the four corners of the earth had been brought—was beyond the reach of the Constitution.

The district court rejected the stark position of Obama. It applied the
Boumediene
criteria to Bagram and found that habeas is available to those prisoners who were not Afghan citizens.
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However, the court of appeals, also applying the
Boumediene
criteria, reversed this decision and denied habeas to any of the Bagram prisoners.
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Three years later, following further proceedings in the district court on remand, the court of appeals reaffirmed its position.
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Such protracted litigation is not at all surprising, given the multivariate test Justice Kennedy laid down in
Boumediene,
but what is remarkable and disturbing is that Obama denied that habeas is available for the prisoners of Bagram, just as Bush had for the Guantánamo prisoners.

Finally, account must be taken of Obama’s position on the warrantless wiretaps that began during the Bush era. Bush claimed the authority to institute such surveillance as an incident of his power as commander in chief and insisted that, as such, he was free to disregard the obligation to obtain a warrant imposed by FISA. Obama did not claim such executive prerogatives, nor was there any reason for him to do so. In the Protect America Act of 2007, Congress authorized the president to engage in such eavesdropping, and this authorization was extended in the FISA Amendments Act of 2008. As a senator, Obama voted against the 2007 act. He fought the grant of immunity to the carriers eventually contained in the 2008 act, but in the end he voted for the measure. Upon assuming office, Attorney General Eric Holder indicated that he would vigorously defend the 2008 act’s constitutionality. In 2013 Holder obtained a ruling from the
Supreme Court that denied standing to probable victims of the surveillance and, in so doing, effectively insulated the statute from judicial review.
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