Still, it would be wrong to say that the Supreme Court was the only, or even the principal, checking mechanism. The Court’s decisions were in truth quite limited. Two decisions addressed only whether Guantánamo detainees could be heard in court, but said nothing about the law that would apply once their claims were adjudicated. Since then, many district courts have ruled that Guantánamo detainees should be released for lack of evidence, but those decisions can be appealed. In each case that the Obama administration has appealed, it has won in the D.C. Circuit; the Supreme Court, in turn, has declined to exercise further review. Thus, in nearly ten years, not a single detainee has been released by order of a court. (The administration has forgone appeals in some cases and released the detainees, but given its record in the court of appeals, these releases were a matter of choice, not legally compelled.)
The Supreme Court’s ruling that a US citizen was entitled to due process upon being held as an “enemy combatant” failed to specify the particular procedures due him, and the administration avoided further court review, releasing the detainee on condition that he resettle in Saudi Arabia. And the Court’s decision declaring President Bush’s military commissions illegal rested only on statutory grounds, which Congress promptly overruled.
Beyond these cases, the Court has done nothing to halt the government from overreaching its legitimate constitutional powers. In a case I argued, it ruled that Congress could constitutionally make it a crime to advocate for peace and human rights as a form of “material support” to a disfavored group, the Kurdistan Workers Party in Turkey. It dismissed suits against Attorney General John Ashcroft for mistreatment of September 11 detainees and for abuse of the “material witness” statute to lock up a Muslim man without probable cause. And it has declined to review several cases challenging the executive’s aggressive uses of secrecy, torture, and rendition.
Yet despite the fact that no detainee has been released by court order, more than 600 of the 775 people once held at Guantánamo Bay have been released. Torture and inhumane treatment are no longer official US policy. The NSA spying program now has a statutory footing and is subject to judicial approval and oversight. Widespread preventive detention of Muslim and Arab immigrants in the United States has not been repeated. There have been no reports of rendition to torture in years. And the CIA’s black sites are closed.
If these changes cannot be attributed to judicial enforcement or congressional mandates, what was the moving force? The answer is not to be found in the institutions of government, but in civil society—in the loosely coordinated political actions of concerned individuals and groups, here and abroad. Following September 11, many organizations took up the task of defending liberty—among them the American Civil Liberties Union, the Center for Constitutional Rights, Human Rights First, Human Rights Watch, the Council on American-Islamic Relations, and the American Arab Anti-Discrimination Committee. Most of these groups did not even exist in the McCarthy era, our nation’s last security crisis.
Many individual defenders of liberties also spoke out, including Lord Steyn, a former British Law Lord who labeled Guantánamo a “legal black hole”; 175 members of Parliament who signed an amicus brief on behalf of Guantánamo detainees in the first detainee case to reach the Supreme Court; several retired US generals and admirals who insisted on the importance of adhering to the Geneva Conventions; many members of the press, who not only disclosed some of the worst abuses but published countless editorials on the importance of adhering to constitutional and human rights; and individual members of Congress, especially Senators Pat Leahy, Dick Durbin, and Bernie Sanders, and Representatives John Conyers Jr., Jerrold Nadler, and Keith Ellison. These individuals and organizations issued statements, held hearings, filed lawsuits, wrote reports and articles, and tirelessly insisted that the rule of law should not be abandoned in the pursuit of security.
But of course it’s not only that American civil society mobilized in defense of liberty. Civil society mobilizes around a lot of issues, and as often as not it is unable to make much, if any, headway. That the public criticism of government repression was effective also attests to the residual power of the ideals encompassed in the rule of law—liberty, equality, fair process, and dignity. Those values were strong enough, when pressed by a wide range of voices, to restrain the highest officials of the most powerful country in the world. Margaret Mead famously warned that one should “never underestimate the power of a few committed people to change the world.” One might add that one should also never underestimate the power of appeals to the rule of law.
Still, President Obama’s administration has fallen short in a number of critical ways. He has continued to rely on broad claims of secrecy, invoking the “state secrets privilege” to block lawsuits seeking redress for victims of torture and extraordinary rendition. He has dramatically expanded a program of targeted killings using unmanned drones, without setting forth the general procedures or criteria he is employing. Killing the enemy during wartime is not illegal, of course, but assassinating people outside of war is. As long as the contours of the targeted killing program remain secret, we cannot know whether it accords with basic principles of constitutional and international law.
Obama has also defended a sweeping interpretation of the laws prohibiting “material support” to designated terrorist groups. His then solicitor general, Elena Kagan, told the Supreme Court in 2010 that the law makes it a crime even to file an amicus brief on a designated group’s behalf. By a divided vote, the Court upheld the statute, but the dissenting justices—Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor—made it clear that a much narrower reading, limited to aid intended to further terrorism, was available had the administration chosen to adopt it.3
Now the administration is defending on appeal a conviction, under the same statute, of members of the board of the Holy Land Foundation, the nation’s largest Muslim charity, who were sentenced to as much as sixty-five years in prison for providing humanitarian aid to hungry and indigent families in the West Bank—even though, according to the government’s own evidence, not a penny went to any group designated as terrorist, and not a penny was used for anything but humanitarian purposes. Lacking such evidence the administration argued that the board members’ provision of aid to small West Bank charities violated the law because they should have known the charities were affiliated with Hamas—even though the government had never before said so.
Obama has also failed to deliver on his promise to close Guantánamo, and backed down on his commitment to try terrorists in civilian court wherever possible. In both instances, he did so because of substantial opposition from members of Congress, many from his own party, so he is not solely or even primarily to blame. But on this subject, as on too many others, he has failed to lead.
But most disturbing, from the standpoint of resurrecting the rule of law, the administration has refused to confront honestly the nation’s past wrongs. As President Obama entered office, he sought to make a clean break with his predecessor. But at the same time, he has insisted that we look forward, not back. His administration has refused to conduct the criminal investigation that the Convention Against Torture requires wherever there are credible allegations that a person within our jurisdiction has committed torture. His Justice Department vetoed the recommendation of its own Office of Professional Responsibility that lawyers John Yoo and Jay Bybee be referred to their bar associations for disciplinary action in view of their having failed to provide candid legal advice in drafting the “torture memos.” The administration has sought to derail efforts in Spain to investigate US responsibility for torture of Spanish citizens held at Guantánamo. And President Obama continues to oppose even a high-level commission to investigate and report on the nation’s departure from the rule of law and descent into torture, abduction, and disappearances.
Obama appears to believe that such an investigation would be divisive, and might undermine his efforts to portray himself as above partisan wrangling. But division is a fact of life in Washington these days. And being above the fray is not an unmitigated good; some things are worth fighting for. A legal and moral accounting of the wrongs we have done should be high on the list.
Because so much was done under the veil of secrecy, much remains unknown about the extent of the illegality. Mark Danner’s publication in these pages of the Red Cross’s report on the abusive interrogations of “high-value” detainees provides a glimpse at the horrors US agents inflicted.4 But we do not even know how many people US officials have abducted, rendered, disappeared, tortured, or killed. We do not know the extent of the injuries suffered, and still being suffered, by those we abused. We still know relatively little about the mistreatment of most of the Guantánamo detainees. We have not apologized to even a single victim—not even to those, like Canadian citizen Maher Arar and German citizen Khaled al-Masri, who were targeted for renditions and torture based on misinformation, and have been cleared of any wrongdoing themselves.
Meanwhile, our former president in his memoir has proudly proclaimed that he personally authorized waterboarding—a practice we prosecuted as torture in the past when it was used against our troops. The former vice-president recently replied affirmatively when asked whether waterboarding should “still be a tool” of interrogation. Failing to condemn such blatant wrongdoing in some official way leaves an open wound both for the victims and for the integrity of our system, and implies that the tactics were neither lawless nor immoral. The rule of law may be tenacious when it is supported, but violations of it that go unaccounted corrode its very foundation.
All of which only underscores the continuing need for an engaged civil society committed to the ideals of liberty and law. The past decade suggests that the rule of law may be stronger than cynics thought. It teaches that adherence to values of liberty, equality, and dignity is more likely to further than to obstruct our security interests. But it also illustrates our collective reluctance to confront our past, a reluctance that threatens to erode our most important values. As one of America’s greatest judges, Learned Hand, once cautioned, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”
3 Holder v. Humanitarian Law Project, 130 S.Ct.2705 (2010). ↩