On December 18, 2001, The U.S. Department of Justice sent a memorandum to William J. Haynes, II, General Counsel at the Department of Defense. The memo, entitled “Possible habeas jurisdiction over aliens held in Guantanamo Bay, Cuba” and written by Deputy Assistant Attorney Generals Patrick F. Philbin and John C. Yoo, “addresses the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the U.S. naval base at Guantanamo Bay, Cuba (‘GBC’)”.
“If a federal district court were to take jurisdiction over a habeas petition,” they point out, “it could review the constitutionality of the detention and the use of a military commission, the application of certain treaty provisions, and perhaps even the legal status of al Qaeda and Taliban members.” Of course, to prevent that from happening, the authors “conclude that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at GBC.”
Because the government desired to hold prisoners without applying the Geneva Conventions or other relevant treaty provisions, it is considered a “risk” that there is a possibility “that a district court might reach the opposite result.” A brief examination of the “great weight of legal authority” presented by the authors is instructive.
The basis for the argument that prisoners detained at Guantanamo Bay were exempt from their rights is based on a Supreme Court case which “held that federal courts did not have authority to entertain an application for habeas relief filed by an enemy alien who had been seized and held at all relevant ties outside the territory of the United States.” In that case, prisoners were tried in China and held in Germany. Hence, “these prisoners at no relevant time were within any territory over which the United States is sovereign”.
By their legalistic interpretation of this ruling, the authors of the memo attempted to create a legal black hole at Guantanamo Bay. Of course, the difference is that in the case cited, the prisoners clearly fell under some other jurisdiction, whereas, in the case of Guantanamo, they would like to have prisoners held under no jurisdiction whatsoever. This judgment is a gross violation of the spirit of both U.S. and international law concerning the detainment of prisoners, which depends upon the ridiculous argument that the U.S. has no legal jurisdiction over its own military bases.
So, while the Court, in that case, “based its conclusion on the fact that the prisoners were seized, tried, and held in territory that was outside the sovereignty of the United States and outside the territorial jurisdiction of any court of the United States”, the authors of the memo argue that the Court did not intend “to establish a two-part test, distinguishing between ‘sovereign’ territory and territorial ‘jurisdiction.'” Rather, according to Philbin and Yoo, “the Court used the latter term interchangeably with the former”. In other words, their argument depends on the interpretation that the Court was not distinguishing between “sovereign territory” and “territorial jurisdiction”.
Such an interpretation is necessary in order to conclude that Guantanamo Bay, Cuba, falls under no legal jurisdiction whatsoever, and therefore that the U.S. government can do whatever it pleases with prisoners held there, regardless of U.S. or international laws which might have to say about the rights of those individuals.
While the United States, according to its lease agreement with Cuba, “shall exercise complete jurisdiction and control over and within” the leased areas, it “specifically reserves sovereignty to Cuba.” Hence, the usefulness of the authors’ interpretation, their refusal to acknowledge the distinction between “sovereign territory” and “territorial jurisdiction”, becomes perfectly apparent.
Of course, all one would need to do to test this interpretation would be to point out the obvious conclusion, then, that Cuban courts held jurisdiction of the prisoners at Guantanamo Bay, and could do with them as they so please. It is no great stretch of the imagination to realize that these same authors would no doubt argue, if that conclusion were presented to them, that although Cuba was “sovereign” over the U.S. Naval base, “territorial jurisdiction” fell under the United States. The absurdity and hypocrisy of their Pharisaic interpretation thus would become perfectly apparent.
The point is all the more clear when the memo notes a court decision which states that “We disagree that ‘control and jurisdiction’ is equivalent to sovereignty.” In other words, contrary to the interpretation of Philbin and Woo, there clearly is a distinction between “sovereign territory” and “territorial jurisdiction”–a distinction they would like to apply when it suits them, but ignore when it means persons being detained by the United States in the “war on terrorism” might be entitled to some human rights.
The rest of the memo is more such sleight-of-hand legalism which serves the purpose of convincing the Defense Department that two plus two is five and black is white. For instance, they cite another case which decided that “GBC is also outside the ‘territorial jurisdiction of any court of the United States'”. Again, that may be very good evidence that detainees at Guantanamo Bay fall outside the territorial jurisdiction of the United States, according to the courts; but, then, it also means that they fall within the jurisdiction of Cuba–a conclusion these same legalists would no doubt summarily reject, despite their own arguments which lead inevitably to that conclusion.
Again, the necessity of drawing the distinction only in cases where it suits the purposes of the government becomes even further apparent when the authors of the memo note that “A non-frivolous argument might be constructed…that GBC, while not part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” In that case, the application of the aforementioned Supreme Court case “might not be as clear” because “‘sovereignty’ over territory and ‘jurisdiction’ over territory could mean different things.”
Of course, the possibility that this argument could be made is precisely the “risk” the Justice Department is warning the Defense Department about with this memo. And, since this argument, they note, could only be made “if there is a difference between ‘sovereignty’ and ‘jurisdiction'”, it is a very grave “risk” indeed, for members of our government might otherwise be responsible for war crimes if it weren’t for the selective refusal to acknowledge the distinction between those two terms.
Thus, Philbin and Yoo argue that although a court “might find support in some cases” for the argument that these terms are in fact distinct from one another, “we believe that these precedents are not good law.”
Let us hope that the future of humankind does not depend upon what the U.S. government lawyers choose to regard as “good law”; particularly when the U.S. Constitution and Geneva Conventions are regarded by them with so much contempt.
But the memo continues to assess the “risk” of the current government policies by pointing out that another ruling held that “Guantanamo Bay is a military installation that is subject to the exclusive control and jurisdiction of the United States”, which meant that “constitutional rights applied to Haitian refugees held at GBC”, a judgment which “relied in part on the fact that certain U.S. criminal laws apparently applied to GBC under the definition of the United States’ ‘special maritime and territorial jurisdiction’ in section 7 of title 18, United States Code.”
And the “risk” is even greater, since another court ruled that “because ‘Guantanamo Bay Naval Base…is under the complete control and jurisdiction of the United States government,’ aliens held there must be granted some constitutional protections.”
So, they argue that “The mere fact that U.S. criminal law applies…does not bring a place within the territorial jurisdiction of a federal district court.” In other words, although the courts uphold that U.S. law applies to persons at Guantanamo, U.S. courts can have no say in what goes on there, and so the Defense Department should feel free to disregard the applicable laws.
The argument boils down to this: the U.S. government is above the law, above both the Constitution and the Geneva Conventions. The argument is, when stripped to its essence, that the U.S. government can do whatever it pleases, and there isn’t anybody who can do anything about it. That is the argument which seems to have prevailed, and which has led to such prisoner abuses as we have seen at Guantanamo Bay, and in such places as Abu Ghraib prison in Iraq.
Still, the U.S. Justice Department would be negligent of its duty if it did not inform the Defense Department of the “risk” involved in choosing to take that stance, should justice actually ever prevail over legalism, or should right ever prevail over might. Therefore, the authors of the memo are obliged to point out, “There is little doubt that such a result could interfere with the operation of the system that has been developed to address the detainment and trial of enemy aliens.” Should that happen, the “Geneva Conventions and the International Covenant on Civil and Political Rights” might dangerously prevail, and “what international law norms may or may not apply to the conduct of the war” might be put to the question. If this house of cards should ever collapse, one “could argue that subsequent developments in the law of habeas corpus require the federal courts to review the constitutionality of military commission procedures today.” If that were to happen, one “might even be able to question the constitutional authority of the President to use force in Afghanistan and the legality of Congress’s statutory authorization in place of a declaration of war.”
It is on account of this possibility that the Justice Department issued the assessment of the “risk” involved in the detainment of prisoners at Guantanamo Bay outside the legal norms of basic human rights. It is on account of this “risk” that Philbin and Yoo “caution that there is some possibility that a district court would entertain such an application.” It is precisely the “risk” that justice might prevail that warranted the creation of this cautionary memo.
Such is the post-9/11 world we have come to live in. But lest we should point the finger at any other to lay blame for the present reality, let us pause and consider first that the truth of the matter is that this is a world of our own making. And only we can remake it once again into a world where Justice prevails is not regarded contempt by U.S. government lawyers.