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Defense Secretary Donald Rumsfeld has described Guantanamo Bay as the “least worst place” to house captured Taliban and al Qaeda forces. Presumably, he was referring neither to the warm climate nor the expense of building and maintaining a prison there, but to the legal framework that kept the courts of the United States and other nations away from the detainees. Now, with the Supreme Court’s recent decision to hear the Guantanamo Bay detainee cases, Rumsfeld’s assessment is in jeopardy. To date, the briefs and media analyses have assumed there are only two choices. Either the Court should stand up for civil rights, asserting habeas corpus jurisdiction over the detainees, or the Court should let the military proceed to fight the War on Terror without judicial second-guessing. As Linda Greenhouse wrote in The New York Times, “This was a moment long in coming: the imperial presidency meets the imperial judiciary.” But there is a third option, one that would preserve the possibility of judicial review while leaving the waging of war to Congress and the president: The Court could essentially ask Congress for the authority to take jurisdiction over these cases. WHAT THE LAW IS Before elaborating, it helps to try to understand what the case, at its core, is and is not about. Did the justices take the case to protect their turf, to establish “what the law is”? Some suggest so, because the justices rejected the solicitor general’s suggestion that they not hear the case. Moreover, the justices rephrased the question presented to a more neutral form than that proposed by the solicitor general. Anyone familiar with the outcomes of Supreme Court cases, however, would be hesitant to read too much into such tea leaves. The votes of only four justices are necessary to hear a case; five votes are needed to decide it. Also, the Court has already said “what the law is” in very similar circumstances. In 1950, the Supreme Court held in Johnson v. Eisentrager that the federal courts had no jurisdiction to hear habeas petitions from aliens incarcerated in Landsberg Prison in Germany, a facility commanded by an American army officer. The Court lacked jurisdiction, it wrote, because the prison was in the sovereign territory of Germany. The solicitor general argues that Guantanamo Bay is similarly outside American sovereignty and court jurisdiction, since the United States’ perpetual lease with Cuba recognizes “the ultimate sovereignty of the Republic of Cuba” over the base. GERMANY AND CUBA So a better question would be: Is Guantanamo Bay in the War on Terror meaningfully different from Landsberg Prison after World War II? Two possible distinctions, rejected by the lower courts, should get short shrift from the Supreme Court. First, it is irrelevant that the War on Terror, unlike World War II, did not begin with a declaration of war. Congress’ Joint Resolution of Sept. 18, 2001, gave the president authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of Sept. 11. Second, it does not matter that the War on Terror is not against a nation-state, and may have no definite ending because nobody (not even Osama bin Laden) can surrender for al Qaeda, much less for all terrorists. As the 4th Circuit wrote in another case arising out of the War on Terror, “Neither the absence of set-piece battles nor the intervals of calm between terrorist assaults suffice to nullify the war-making authority entrusted to the executive and legislative branches.” Indeed, continuing hostilities in Afghanistan and Iraq make it highly unlikely that the Court would find these arguments convincing. Other distinctions might have more traction with the Court. First, the Court might say that “sovereignty isn’t what it used to be” and assess who is in control of the ground where the prison stands; that is, legal realism should trump legal fiction. But such a decision would open a Pandora’s box. Who has “control” over a particular physical space at a given time, for example in Afghanistan or Iraq, where other detainees are held? Control, which may change quickly, would be a slippery concept on which to premise judicial review years later. Second, the Court might say Guantanamo is different because, over many years, U.S. control has displaced Cuban sovereignty in the same way that adverse possession may displace a landowner’s title. This would subject Guantanamo detainees to habeas jurisdiction, but not open up battlefront locations arguably controlled by U.S. forces to judicial oversight. Predictably, such a decision would lead the Defense Department to open up additional prison facilities in Afghanistan or Iraq, and ship the detainees there. And there are still more distinctions. The German prisoners in Landsberg Prison had been tried and convicted, so they were less sympathetic petitioners than the Guantanamo detainees. A detainee inadvertently rounded up in the melee of battle in Afghanistan who is held indefinitely may simply have been in the wrong place at the wrong time, turned over by Northern Alliance troops to U.S. forces inadvertently (or even maliciously, for a bounty). Moreover, low-level Taliban fighters might be relatively harmless even if repatriated, now that the Taliban cannot conscript them. Indeed, some detainees have already been repatriated to Afghanistan and elsewhere. And news reports last week indicated that perhaps 100 additional prisoners would be released in the coming weeks. But even these distinctions do not address head-on the ultimate policy issue: What role, if any, should the courts assume concerning military detainees at Guantanamo or elsewhere? Is it heartless, or morally wrong, to permit the detainees no redress other than discretionary decisions by the Defense Department? CART BEFORE THE HORSE The problem with this “sympathy” analysis is that it gets the cart before the horse. Only if a court has jurisdiction can it look at the merits. And it looks like the Supreme Court does not have jurisdiction. Congress has not sought to create any exceptions to Eisentrager in more than 50 years. Moreover, when the Senate ratified the International Covenant on Civil and Political Rights in 1992, it explicitly mandated that the human rights recognized by the treaty were not enforceable in the U.S. courts. For the Court to exercise jurisdiction where Congress has conferred none would exceed the constitutional power of the judiciary. At a minimum, constitutional separation of powers demands that judicial oversight of a facility run by the Defense Department in another sovereign’s territory should be accorded by statute, not judicial fiat. But that doesn’t mean that the merits are irrelevant to how the Court decides the Guantanamo Bay cases. Two hundred years ago, the Supreme Court in Marbury v. Madison looked at the merits of William Marbury’s effort to obtain appointment as a justice of the peace, before famously holding that the Constitution prohibited the Court from deciding that question. As Chief Justice John Marshall wrote, Marbury had a “right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy. It remains to be enquired whether . . . [h]e is entitled to the remedy for which he applies.” The Court, of course, held that he wasn’t. And Marbury isn’t the only precedent along these lines. In Korematsu v. United States, the Court in one of its most excoriated cases accepted jurisdiction to look at the exclusion of Japanese-Americans from the West Coast of this country. Justice Robert Jackson’s wise dissent counseled that, while “the military reasonableness of these orders can only be determined by military superiors, . . . I do not think [the courts] may be asked to execute a military expedient that has no place in law under the Constitution.” In both cases, justices noted a problematic legal issue, but then explicitly declined to step into the breach. That’s a model for how the Court could decide the Guantanamo Bay cases. The Court might acknowledge that the petitioners have not been tried and that some may be victims of circumstance. The Court could show concern that following Eisentrager creates a “legal black hole” in which no disinterested tribunal, in the United States or elsewhere, can address potentially wrongful detentions. It could then observe, however, that no statute confers jurisdiction for the federal courts to hear such cases; the habeas corpus statute has never been construed to reach aliens detained by the military in foreign lands during time of war. Such a decision would have several salutary effects. First, it would avoid, yet again, a threatened clash between the judiciary and the executive. Second, it would avoid the inevitable judicial acquiescence on the merits of forthcoming petitions, for federal judges are unlikely to order a detainee’s release if the military objects. Military objections to the merits of habeas petitions from Guantanamo are likely to be terse, but the courts will be in no position to dispute the military’s conclusions. If the Court says it has jurisdiction but then defers almost totally to the discretion of the military authorities, has it really extended civil liberties protections in wartime? Deferential judicial review would provide an annoyance to military operations while providing nothing for detainees. QUESTIONS FOR CONGRESS Finally, a Supreme Court decision acknowledging that Congress has not conferred authority on it to hear such cases might spur Congress to craft a statute that reflects the varying considerations at Guantanamo (and perhaps elsewhere). A statute, unlike a judicial decision, could address a range of problems: Are the federal courts the appropriate disinterested forum? Or should a more specialized and less public forum be available for detainee claims? Should such claims be barred for a period of time to enable effective interrogation? Should counsel for a detainee be involved in the review process? If so, how? Should traditional standing requirements (a detainee must be represented by an appropriate “next friend”) be altered in such cases? Courts would be far better equipped to deal with detainees — and more confident of their power to challenge the military if necessary — if they acted with full congressional authorization. To paraphrase Secretary Rumsfeld, a decision to pass the ball to Congress might be the “least worst” decision open to the Court. Charles A. Shanor is a professor at Emory University School of Law in Atlanta. He is the author of American Constitutional Law: Structure and Reconstruction (2003) and coauthor, with Lynn Hogue, of National Security and Military Law in a Nutshell (2003).

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