Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, and Resisting Injustice

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 in 2002, almost no legal commentator gave the plaintiffs 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 handed CCR a resounding victory. Four years later, the Supreme Court again ruled in CCR’s favor in 2008 in Boumediene v. Bush, 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.” We had won, or so we all thought.By 2012, when this article was published, another four years had passed, and it had become clear that these great victories did not achieve the result we desired. The litigation, of course, had an enormous impact, resulting in hundreds of Guantanamo prisoners being released. Yet despite President Obama’s promise to close the Guantanamo prison, it remained open more than a decade after the first detainees were brought to Guantanamo, and almost 170 prisoners still languished there. Many of the lawyers, scholars, and advocates involved in the litigation were deeply disappointed, feeling – as Joe Margulies, the lead counsel in Rasul v. Bush put it – that “[he] now looks back on Rasul as a failure.”This article explores and explains how and why the CCR’s landmark victories in the Supreme Court resulted in disappointment and addresses the question raised by the analysis of Jack Goldsmith, Harvard professor and former Bush administration official: has the Guantanamo litigation simply legitimated permanent military preventive detention? In doing so, this Article places the Guantanamo cases and post-9/11 litigation in a broader context of rights-based courtroom challenges to injustice, exploring the dilemmas and advantages of such litigation. It ultimately concludes that Goldsmith’s analysis misses a key aspect of the Guantanamo litigation.Part I of the article explores how the lower courts have limited the Boumediene v. Bush ruling. Part II analyzes the deeper issue of the lower court’s acceptance of the U.S. military’s preventive detention paradigm in the conflict with al Qaeda, and why that paradigm is problematic. Part III addresses the underlying reasons why these Supreme Court victories have led to the dashed hopes, continued injustice, and disappointment that characterizes the situation in Guantanamo. This section locates the Guantanamo litigation in a broader context, illustrating how both domestic U.S. courts and other national legal systems have often, in similar contexts, followed the same trajectory. It argues that the real problem with the Guantanamo litigation lies in the failure of rights to fulfill their promise without a strong political movement pushing those rights forward. Both victory and defeat must be judged in a broader frame than merely what happens in the courtroom battle. The concluding part challenges Goldsmith’s account that the Guantanamo litigation’s main role was to legitimate the Bush/Obama system of preventive detention, arguing that rather than simply playing a supporting role in Goldsmith’s well-oiled system of checks and balances and Presidential accountability, litigation of this sort can and often does also serve as a mechanism of long-term resistance to an oppressive system