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O'Connor, Sandra Day --- "Guantanamo Bay: Legal Black Hole?" [2008] CanterLawRw 8; (2008) 14 Canterbury Law Review 207



The title that this Law School has given me for today's talk is: 'Guantanamo Bay: Legal Black Hole'. Whoever picked that title, and it was not me, was kind enough to leave me some room by placing a question mark at the end of the sentence. I appreciate that; it sounds better than an exclamation point.

I know that the treatment of United States detainees in Guantanamo, and the United States' response to terror is of interest around the world. I will describe how the United States courts have dealt with Guantanamo Bay, and then you will have to decide for yourselves whether to place a question mark or an exclamation point for my remarks.

I would like to start by describing a conflict between the Executive and judicial branches of the United States government. Not long after the outbreak of war, the President of the United States altered the traditional understanding of civil liberties by finding that standard jury trials were incapable of meeting the necessities of wartime. In an effort to remedy this situation, the Executive determined that some defendants should be tried by special military courts rather than traditional juries. The United States Supreme Court rejected this claim, however, finding that the military courts lacked jurisdiction over the defendants who were United States citizens.

While this conflict may sound as though it comes directly from today's New York Times, these events predate that newspaper's birth. Instead of describing President George W Bush and the War on Terror of today, I am describing President Abraham Lincoln and our Civil War of the 1860s. President Lincoln decided that wartime needs required him to suspend our constitutional right to a writ of habeas corpus. In Ex parte Milligan,1 our Supreme Court held that military tribunals did not have jurisdiction over civilians who were suspected of aiding the Confederacy so long as the traditional civilian courts remained open and functioning. Justice David Davis' opinion for the Supreme Court noted, in language that has taken on renewed resonance today, that the Constitution provides 'law for rulers and people, equally in war and peace ...'.2

I begin on this historical note because it is important to remember that this is not the first age or time in which governments have considered how best to strike the delicate balance between protecting civil liberties, on the one hand, and protecting national security, on the other. There are distinctly novel aspects to the modern struggle against terrorism, but there is continuity in addition to change. History does not provide all of the legal answers, of course, but it often helps us in asking the correct legal questions.

We should be skeptical of arguments that seek to minimise the very real dangers of the present conflict. While quite some time has passed since a terrorist attack occurred within the United States, the absence of an attack does not mean that the enemy has been vanquished. Slightly more than a year ago, several deadly car bombs were discovered in densely populated areas of London. Attacks against airports in the United Kingdom and Germany were narrowly averted. And suicide bombings have become so commonplace in some parts of the world that they no longer make the nightly news. Those who would make no restrictions on personal liberties might do well to remember the thoughts that United States Supreme Court Justice Robert Jackson expressed in a dissenting opinion in a case involving the freedom of speech. 'The choice is not between order and liberty', Justice Jackson wrote, 'It is between liberty with order and anarchy without either'. Justice Jackson famously warned that unqualified demands for liberty threatened to 'convert the constitutional bill of rights into a suicide pact'.3

Surveying the past reveals that the United States has not always struck the proper balance between national security and civil liberties. Perhaps the most disturbing example of a failure to safeguard civil liberties is illustrated in Korematsu v United States.4 In that case from World War II, our Supreme Court considered whether American-born citizens of Japanese descent could be placed into internment camps because of their ancestral backgrounds. Although Justice Hugo Black's opinion for the Supreme Court conceded that 'all legal restrictions which curtail the civil rights of a single group are immediately suspect', he nonetheless found that national security demanded 'that all citizens of Japanese ancestry be segregated from the West Coast temporarily'.5

Justice Jackson, again in dissent, contended that placement of the Court's imprimatur on the internment camps struck a deep blow against liberty. '[O]nce a judicial opinion rationalises such an order to show that it conforms to the Constitution ... the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens'.6 The Korematsu opinion, Justice Jackson feared, 'lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need'.7 Since World War II, thankfully, no official has reached for that loaded weapon. Even in our current time of anxiety, it has not been proposed that we remove the liberty of an entire group solely because of their race, religion, ancestry, or even some combination thereof. Korematsu appears to remain a dead letter law.

That the September 11 attacks spawned fear and terror is well-known. But those attacks also spawned legislation, both in the United States and abroad, designed to combat terrorism. That legislation is working its way through legal systems around the world. In the wake of those attacks, the legislative and Executive branches of the United States took a number of steps to act against terrorism. Congress adopted the Authorisation for Use of Military Force Against Terrorists of 2001 (AUMF),8 which gave the President authority to use military force against the entities responsible for the attacks. It also gave the President authority to prevent future terrorist attacks. Using this law, the President sent United States troops to Afghanistan to wage war against al Qaeda and the Taliban. The President also set up a detention center at Guantanamo Bay, Cuba, and established protocols to try the detainees. These actions have prompted four major Supreme Court decisions regarding the war on terror: Hamdi v Rumsfeld,9 Rasul v Bush,10 Hamdan v Rumsfeld,11 and the latest, Boumediene v Bush.12

In the first of these cases, our Supreme Court considered the case of Yaser Hamdi, an American-born citizen who was captured on a battlefield in Afghanistan. He was brought back to the United States, and designated an 'enemy combatant'. Hamdi's father filed a lawsuit contending that his son should be permitted to challenge this designation. The Court (in an opinion I authored) held that 'a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker'.13 The Court also expressed skepticism regarding the government's contention that the principles of separation of powers necessarily limit the judiciary's role during the war on terror. Furthermore, we noted that 'a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens'.14

The second of these cases, Rasul v Bush, involved non-citizens of the United States. Rasul was a habeas corpus suit brought on behalf of Guantanamo Bay detainees, including citizens of some Member States of the European Union, who were captured on a battlefield in Afghanistan. The Executive Branch asserted that these individuals had no right to challenge their detainment because they were non-citizens who were caught on a foreign battlefield and were being held outside of United States borders. The Supreme Court held that federal courts do in fact 'have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing'.15 It held that Guantanamo is within the jurisdiction of the United States courts for this purpose.

Two years ago, the Supreme Court issued Hamdan v Rumsfeld which considered, among other issues, the permissibility of the military tribunals set up by our Chief Executive, and the limited rights in such proceedings that the Executive Branch established to try detainees. The Court determined that Congress had authorised the Executive Branch to try suspected terrorists in military tribunals in only exceptional circumstances. However, the Court set the standard procedural rules of courts-martial as the baseline to be used in such trials, rather than the more limited rights the government had provided. While the administration may be permitted to change or adapt those rules, it must demonstrate that using the standard courts-martial rules would be impracticable. Four members of the Court in Hamdan also indicated that the proposed military tribunals violated Article 3 of the Geneva Conventions, which requires that criminal sentences be issued by 'a regularly constituted court affording all the judicial guarantees recognised as indispensable by civilised peoples'.16

After the Supreme Court decided Hamdan, Congress passed the Military Commissions Act of 2006,17 which some argue repealed all the federal courts' jurisdiction over the claims of those who have been designated enemy combatants. Prisoners in Guantanamo have filed habeas corpus challenges questioning their detainment. The Court of Appeals for the District of Columbia Circuit believed that it lacked jurisdiction over those cases under the Military Commissions Act and dismissed them.

A little over a month ago, the Supreme Court addressed this question in the opinion of Boumediene v Bush.18 The Court held that the United States' exercise of authority over Guantanamo Bay gave the detainees the constitutional right to bring claims of habeas corpus in federal district courts. The Court also held that the procedures authorised under the Military Commissions Act, which authorised tribunals to look into the detention of the Guantanamo detainees, were not an adequate substitute for habeas. In holding those procedures inadequate, the Court relied on numerous factors. It found persuasive the fact that many of the detainees had been seeking release for six years without relief, and that the detainees may be unable to present additional evidence in their favour at the tribunals.

As the Court explained, '[t]he laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law'.19

I am going to take a step back to discuss another case involving a detainee at Guantanamo Bay. You recall that in Boumediene, the Supreme Court decided that the procedures established in the Military Commissions Act were not an adequate substitute for habeas corpus. Huzaifa Parhat is a Chinese Muslim who had been held at Guantanamo for more than six years. Unlike Boumediene, Parhat did not seek a writ of habeas corpus. Instead, he sought relief under the provisions of the Military Commissions Act. Parhat believed that the evidence that he was not an enemy combatant was so strong that he was willing to seek the more limited review under the Military Commissions Act, in hopes that his claim would be resolved more quickly, rather than wait to hear the results of the habeas proceeding.

Two short weeks after the Supreme Court handed down Boumediene v Bush, the District of Columbia Circuit decided Parhat's case.20 Much of the evidence in that case was classified, and so the opinion that was eventually released to the public was stripped of names and identifying information.

But if you are worried that the classified nature of the material was used as a shield to justify holding detainees, I must tell you that the District of Columbia Circuit completely agreed with Parhat, and ruled that he was not an enemy combatant. In the materials that they did release, they directed the government to either release Parhat, or present more reliable evidence at an expedited tribunal.

I think you must acknowledge that the United States Courts have taken a rather firm stand on the status of prisoners held at Guantanamo Bay. Hopefully, you will reconsider the appellation of 'legal black hole'.

I would like to now turn from the response of the United States to the responses of other nations. It is worth noting the dialogue between courts and legislatures in Germany, Canada, and Great Britain regarding the response to terrorism.

The Canadian Supreme Court has also grappled with the issue of Guantanamo Bay. You may recall that I mentioned that one of the reasons that the Supreme Court found the military tribunals to be inadequate is that the detainees lacked access to basic evidence about the cases against them. One Canadian detainee, Omar Khadr, has been detained at Guantanamo since 2002. In 2003, he was questioned by Canadian officials, who received substantial information from the United States government about the charges against Khadr. In crafting his defence, Khadr asked Canada to divulge all the information in its possession. The Canadian government objected, because the United States had specifically not authorised disclosure of those documents.

A few months ago, the Canadian Supreme Court held that the procedures that were in place at Guantanamo Bay at the time when Khadr was interviewed violated Canada's international human rights obligations. As a result, it authorised disclosure of the documents, and stated that '[t]he comity concerns that would normally justify deference to foreign law do not apply in this case'.21

Canada has also had to grapple with its own set of terrorism related concerns. One area that has particular interest to the Canadian government deals with the area of immigration. As you can imagine, the Canadian people are not too keen on allowing terrorists and security threats into their country. But filtering out those who are terrorists has also created substantial problems.

Canada's Immigration and Refugee Protection Act22 allowed the Minister of Citizenship to issue a certificate declaring that a particular foreign national could be inadmissible on grounds of security. Because of the security concerns involved, the procedure for issuing the certificate required secrecy.

Once that certificate was issued, the foreign national could be detained. A judge would then have to examine the certificate; once the certificate was deemed reasonable, the determination could not be appealed.

In 2007, the Canadian Supreme Court heard a challenge to this procedure in Charkaoui v Canada (Citizen and Immigration).23 It found that this procedure violated the Canadian Charter of Rights and Freedom because the secrecy involved in obtaining a certificate meant that a person would not have the opportunity to present evidence in his favor. The Court explained, '[w]hile the protection of Canada's national security and related intelligence sources constitutes a pressing and substantial objective ... [l]ess intrusive alternatives developed in Canada and abroad ... illustrate that the government can do more to protect the individual while keeping critical information confidential'. The Court required the Canadian government to retain all such information in the future and affirmed a postponement in order to give Charkaoui the time to prepare his defence.

Following the September 11 attacks, Germany adopted the European Union's 'arrest warrant procedure', a counter-terrorism measure which gave European Union (EU) member states the right to extradite citizens from other member states. In connection with this procedure, Spanish authorities sought the extradition of a Syrian-born citizen of Germany who it alleged had worked closely with Osama bin Laden and provided financial support to al Qaeda. Two years ago, however, Germany's Federal Constitutional Court, that nation's highest court, prevented the extradition, holding that the implementation of the EU arrest warrant law violated the German Constitution. In addition to preventing the extradition, the Court's decision also set the suspected terrorist free. Around the same time of that decision, moreover, Germany's highest criminal court, the Federal Court of Justice, ordered the release of another suspected terrorist because he was not tried with the required German evidentiary standards.24

Within the last few years, Germany passed two laws that are designed to strengthen the tools that law enforcement has available to it to fight terrorism. The first Act creates a central, nationwide database, accessible by German police and intelligence agencies in every state. The database stores information not only on terrorists, but on those who advocate hate crimes, and on anyone who is sufficiently connected with them. The data includes bank account information and internet activity.25

Shortly after establishing this national database, Germany updated its counter-terrorism procedures. Germany had already granted intelligence some special powers with respect to investigating terrorism, but the new Act not only prolonged those powers for another five years, until 2012, but it expanded the investigative powers of German intelligence to obtain new records.26 The effects of this legislation, and any legal challenges to it, remain to be seen.

Great Britain has also been involved in combating terrorism. In December 2001, just three months after the attacks in the United States, Great Britain's Parliament passed the Anti-terrorism, Crime and Security Act 2001.27 That Act was a comprehensive effort to increase Britain's ability to identify terrorists and to seize the financial assets of terrorist organisations. Part 4 of the Act permitted the indefinite detention of non-British terrorist suspects without the need to charge or try them of any offence. Through 2003, Britain's Home Secretary had detained 16 foreign nationals in conjunction with Part 4.

But, the Law Lords, in an eight to one decision in December 2004, found that Part 4's detention policy violated Great Britain's commitment to the European Convention on Human Rights. Lord Nicholls of Birkenhead's decision contended, '[i]ndefinite detention without charge or trial is anathema in any country which observes the rule of law'.28 Lord Nicholls expressed particular concern that the extended powers of detention conferred by Part 4 applied only to non-British citizens. He wrote: 'It is difficult to see how the extreme circumstances, which alone would justify such detention, can exist when lesser protective steps apparently suffice in the case of British citizens suspected of being international terrorists'.29

In March 2005, Britain replaced Part 4 of the Act with new legislation that was designed to comply with the House of Lords' decision.30 The 2005 legislation no longer allows individuals to be detained in prison indefinitely, and instead permits the imposition of conditions resembling house arrest. In contrast to Part 4, moreover, this new legislation pertains to both British and non-British citizens. In addition, the system of 'control orders' allowed by the 2005 legislation has now itself come under judicial scrutiny.31

More than a year ago, Australia also passed anti-terrorism Act of its own.32 Australia's High Court considered the question of indefinite detention.33 Here, the detention question arose in the context of two men who had applied for political asylum and been rejected. Nonetheless, the Court's treatment could have some implications for the treatment of suspected terrorists. A majority of the High Court held that if the failed asylum seekers were eventually supposed to be deported, then the Migration Act34 permitted the men to be detained indefinitely. Justice McHugh, who wrote the leading judgment of the majority, found that:

[T]he parliament is entitled to protect the nation against unwanted entrants by detaining them in custody. As long as the detention is for the purpose of preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for the courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust orcontrary to basic human rights.35

In dissent, Justice Kirby contended, '[i]ndefinite detention at the will of the executive ... is alien to Australia's constitutional arrangements'.36 Justice McHugh also took this matter as an opportunity to note the controversy regarding whether Australia should adopt a bill of rights: 'It is an enduring — and many would say just — criticism of Australia that it is now one of the few countries in the Western world that does not have a Bill of Rights'.37

Each of these decisions received considerable attention in the countries that issued them. That decisions addressing the intersection of liberty and security would be met with something other than universal acclaim is, of course, not surprising. Indeed, it would be surprising if decisions in this contentious area did not provoke strong reactions from people holding a wide array of different views. On some level, though, the disagreement that has greeted these decisions is not discouraging, but heartening. After all, it is evidence that democracy is flourishing, as people are engaged in serious discussions concerning the large questions that face our different countries. This is how it should be. And while we judges are sometimes tempted to view our decisions as definitively resolving matters, it is likely that our opinions represent only the start of the conversation, rather than the end of it.

Now, I would like to turn briefly to the road ahead. In the United States, though it has been almost six years since the September 11 attacks, our Nation is, I fear, far from nearing the end of the conflict. Indeed, I believe that we are closer to the beginning of the conflict than we are to its endpoint. That means, of course, that the judiciaries in various countries will continue to confront legal questions arising from terrorism.

There are serious issues under our system of government, with its three branches, each with great power. The judicial branch's authority to declare unlawful the decisions of the other two branches makes for trouble and dissension.

The United States Supreme Court's decision in Hamdan obviously leaves many questions unanswered regarding what trial procedures will be used to prosecute suspected terrorists.

The European Union has taken an active interest in the detainees who are being held in Guantanamo, whose fate will likely be affected. But whatever trial mechanisms ultimately emerge, we should be mindful that justice is best measured not by outcomes in specific cases, but rather by the procedures that produce those outcomes.

The United Nations Convention against torture which the United States has ratified prohibits the use of torture in absolute terms. It defines torture as 'Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted ...'.38 Questions may well arise in our courts in the future regarding whether specific practices violate that definition of torture.

I mention these issues only to illustrate the difficult matters that courts may confront in the future. And they are remarkably difficult issues, in part because they go to the very core of what we mean when we use terms like 'citizen', 'nation', 'freedom', and 'liberty'. They also go to the core of the notion of separation of powers and to the authority of the judiciary in particular.

To be sure, the issues that the world confronts today are quite distinct from the issues of Lincoln's time. Nonetheless, his words serve as important reminders about the central place that liberty must occupy in a democracy, even during times of conflict. Ultimately, if we lose sight of liberty in an effort to defeat our enemies, the price may have been too high. That is true not least because we could compromise the very principles that initially spurred us to take up the battle.

[*] Associate Judge, Retired, Supreme Court of the United States. Justice Day O'Connor was a visiting Hotung Research Fellow at the School of Law, University of Canterbury during July 2008 and this is a lecture given by her at the School of Law on 18 July 2008.

[1] [1866] USSC 34; 71 US 2 (1866).

[2] [1866] USSC 34; 71 US 2, 120 (1866).

[3] Terminiello v Chicago, [1949] USSC 77; 337 US 1 (1949), 37.

[4] [1945] USSC 43; 323 US 214 (1944).

[5] [1945] USSC 43; 323 US 214, 223 (1944).

[6] [1945] USSC 43; 323 US 214, 246 (1944).

[7] [1945] USSC 43; 323 US 214, 246 (1944).

[8] Authorisation for Use of Military Force Against Terrorists of 2001, 115 Stat.224.

[9] [2004] USSC 2730; 542 US 507 (2004).

[10] [2004] USSC 2809; 542 US 466 (2004).

[11] 548 US 557 (2006).

[12] 128 SCt 2229 (2008).

[13] [2004] USSC 2730; 542 US 507, 533 (2004).

[14] [2004] USSC 2730; 542 US 507, 536 (2004).

[15] [2004] USSC 2809; 542 US 466, 485 (2004).

[16] 548 US 557, 562 (2006).

[17] Military Commissions Act of 2006, 120 Stat. 2600.

[18] 128 SCt 2229 (2008).

[19] 128 SCt 2229, 2277 (2008).

[20] Parhat v Gates, 532 F 3d 834 (2008).

[21] Canada (Minister of Justice) v Kadr [2008] SCC 28, para 3.

[22] Immigration and Refugee Protection Act, SC 2001, c 27.

[23] [2007] 1 SCR 350, 355.

[24] 3 StR 269/04. The case can be found on the Federal Court of Justice's website:

[25] Germany enacted the Act on the Creation of a Joint Database of Police and Intelligence Agencies of the Federation and the States on 22 December 2007. The short title of this Act is the Joint Database Act (BUNDESGESETZBLATT 2006 I at 3409).

[26] On 5 January 2007 the Bundestag (German Parliament) adopted the Act Supplementing the Counter-Terrorism Act of 2002 (Gesetz zur Erganzung des Terrorismusbekampfungsgesetzes, 5 January 2007, BUNDESCESETZBLATT I at 2) which prolongs and expands counter-terrorism related investigative powers until January 2012.

[27] Anti-terrorism, Crime and Security Act 2001 (UK) c 24.

[28] A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department [2004] UKHL 56; [2005] 3 All ER 169, para 74.

[29] A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department [2004] UKHL 56; [2005] 3 All ER 169, para 76.

[30] Prevention of Terrorism Act 2005 (UK).

[31] See Secretary of State for the Home Department v JJ [2007] UKHL 45; (2008) 1 AC 385 (HL); Secretary of State for the Home Department v E (2008) 1 AC 499 (HL); and Secretary of State for the Home Department v MB [2007] UKHL 46; (2008) 1 AC 440 (HL).

[32] Australian Anti-Terrorism Act 2005 (Cth).

[33] Al-Kateb v Goodwin [2004] HCA 37; (2004) 219 CLR 562.

[34] Migration Act 1958 (Cth).

[35] Al-Kateb v Goodwin [2004] HCA 37; (2004) 219 CLR 562, 595.

[36] Al-Kateb v Goodwin [2004] HCA 37; (2004) 219 CLR 562, 615.

[37] Al-Kateb v Goodwin [2004] HCA 37; (2004) 219 CLR 562, 594.

[38] Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, art 1 (entered into force 26 June 1987).

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