Just over ten years ago, the U.S. Supreme Court ruled in Rasul v. Bush that prisoners at Guantanamo Bay could seek review of their detention by habeas corpus. One of a trio of decisions handed down the same day, the Court also affirmed the right of American citizens to due process, even when captured fighting against their country. An early test of presidential power in the War on Terror, these decisions heralded the judiciary's commitment to checking abuses of executive power and ensuring the rule of law.
I was one of a small group of attorneys who worked on these early legal challenges. At the time, the cases seemed like they might reign in the Bush administration's assertion of extraordinary presidential power and alter the direction of U.S. counterterrorism policy.
Their impact, however, has diminished over time. While the Supreme Court vindicated the principles of judicial access and due process, its approach has remained minimalist. The Court has not directly confronted the legality of using force against al Qaeda and other terrorist groups across the globe. That question lies at the heart not only of the president's power to detain, but also his authority to engage in lethal drone strikes -- a question that, while dormant when Rasul was decided, has grown in importance with advances in technology.
Guantanamo, to be sure, has changed significantly since its early years. By enabling attorneys to visit Guantanamo, Rasul helped lift the veil of secrecy from America's island prison. Further, the threat of judicial action largely ended the transfer of new prisoners to Guantanamo and reduced the number of detainees there. Nearly 600 prisoners were detained at Guantanamo when Rasul was decided; the current total now stands at 149.
But in other ways, Guantanamo has become more entrenched. Congress has repeatedly enacted measures making it more difficult to close the prison, whether by bringing detainees to the United States or transferring them to other countries. President Obama, despite his repeated pledge to shut the prison, has failed to halt the backlash. He has also declined to exercise the latitude he retains to shrink the current population, notwithstanding current congressional restrictions.
Most troubling, Guantanamo has helped give birth to the notion of the permanent prisoner. The Obama administration has described approximately fifty of the remaining prisoners as too difficult to try, but too dangerous to release. While the international law of war arguably allows for the continued detention of these individuals as long as the armed conflict with al Qaeda continues, the war will not last forever. Indeed, the president acknowledges that it is increasingly difficult to sustain the notion that the U.S. remains in an armed conflict with al Qaeda, whose core has been decimated. Yet, the irrational fear surrounding the release of the remaining detainees makes it more difficult for the administration to declare the war has ended.
As David Cole has observed, Supreme Court decisions alone did not propel the civil rights movement in the United States during the 1950s and 1960s. Ultimately, lasting progress depended upon coordinated action by all three branches of government.
Certainly, such coordinated action could help close Guantanamo and end the system of indefinite detention it embodies. But the political dynamics of counterterrorism are different than the civil rights. Because rights in the terrorism context are not buoyed by a mass movement and lack broad popular appeal, they easily fall prey to a politics of fear that rewards gamesmanship over principled decision making. And the climate around Guantanamo remains uniquely toxic, even judged by the irrationality that pervades American criminal justice policy. Absent a fundamental shift, it is difficult to see how the political branches can end Guantanamo.
In the near future, Guantanamo will again force courts to confront important questions, from whether the U.S. can continue holding without charge individuals who do not present a significant security threat to determining the end of the war itself. Judges may remain reluctant to wade into waters they view as political in nature. But recent decisions regarding hunger-striking detainees suggest a possible judicial reawakening, with courts willing to entertain a range of legal claims and second-guess judgments by executive branch officials.
Rasul's main legacy was to create a space for judicial involvement and help set Guantanamo on the course of closure. The problems posed by Guantanamo may seem more intractable than ever. But Rasul highlights the potential of judicial engagement as well as its limits. Above all, it shows that judges have the capacity to affect the status quo, even if only through the pressure their rulings place on public officials.