Victory without Success? the Guantanamo Litigation, Permanent Preventive Detention, and Resisting Injustice

Table of Contents I. BOUMEDIENE'S NARROWING BY THE LOWER COURTS II. PREVENTIVE MILITARY DETENTION III. EXPLAINING WHY THE BOUMEDIENE VICTORY HAS LED TO THIS BLEAK SITUATION FOR THE REMAINING GUANTANAMO DETAINEES IV. RASUL, BOUMEDIENE AND THE LEGITIMATION OF PREVENTIVE DETENTION In February 2002, when the Center for Constitutional Rights (CCR) brought the first habeas cases challenging the Executive's right to detain prisoners in a law free zone at Guantanamo, almost no legal commentator gave the CCR much chance of succeeding. Yet, two years later in 2004, after losing in both the District Court and Court of Appeals, the Supreme Court in Rasul v. Bush (2) handed us a resounding victory. Four years later, the Supreme Court again ruled in our favor in 2008 in Boumediene v. Bush, (3) holding that the detainees had a constitutional right to habeas and declaring the Congressional statute, which stripped them of that right, unconstitutional. For the first time in American history, the Court had struck down a wartime national security measure enacted by Congress. Numerous commentators termed these Supreme Court cases "landmarks." (4) We had won, or so we all thought. Now, another four years have passed, and our great victories have not achieved the result we desired. The litigation, of course, had an enormous impact, resulting in hundreds of Guantanamo prisoners being released. (5) Yet despite Obama's promise to do so, Guantanamo is still not closed and more than a decade after the first detainees were brought to Guantanamo, almost 170 prisoners still languish there. (6) Many of the lawyers, scholars, and advocates involved in the litigation are deeply disappointed and feel--as Joe Margulies, the lead counsel in Rasul v. Bush puts it--that "[he] now looks back on Rasul as a failure." (7) In a recent New Republic article titled, "The Great Legal Paradox of Our Time: How Civil Libertarians Strengthened the National Security State," Harvard Professor Jack Goldsmith, a former Bush administration official, goes a step further. He argues that while the CCR's Hail Mary Rasul lawsuit produced a famous Supreme Court victory, it not only failed to achieve the results CCR hoped for, but ultimately helped cement and legitimate the counterterrorism policies that Bush introduced and Obama ultimately continued. (8) According to Goldsmith, by challenging the government's authority, CCR ironically ended up strengthening it. (9) While the Supreme Court has imposed restraints on executive power, Goldsmith argues that the courts have approved of "extraordinary presidential powers in the long war against terrorists," particularly the "remarkable fact" that, as we pass the 11th anniversary of the September 11th attacks, the Obama administration is preventively detaining almost 170 prisoners at Guantanamo without charge or trial, and almost 2,000 more in Afghanistan. (10) That this practice of long-term preventive detention is now generally accepted as lawful and legitimate is, in Goldsmith's account, at least partly a result of the CCR lawsuits. (11) Goldsmith recognizes that Rasul and Boumediene had an important restraining impact on the government and aided the detainees. (12) Clearly, the release of six or seven hundred of the nine hundred imprisoned at Guantanamo was a huge accomplishment, (13) as was aiding a global movement to make Guantanamo a matter of important public debate. (14) Nevertheless, Goldsmith also quotes Michael Ratner, the president of the CCR, during the last decade and the inspiration behind the Guantanamo litigation, as believing that while they won courtroom battles, the CCR thus far has lost on their broader arguments: "We lost on the enemy combatant issue ... on the preventive detention issue, more or less, ... [and] on the military commission issue, more or less." (15) For Goldsmith, "[paradoxically, and to Ratner's regret, his victories in court and elsewhere helped Barack Obama to legitimate counterterrorism policies that Ratner sought to end. …