Retired Justice John Paul Stevens Calls for Compensation for the 57 Cleared Guantánamo Prisoners Still Held

Last week, as three prominent Democratic Senators — Patrick Leahy, Dianne Feinstein and Dick Durbin — wrote to President Obama urging him to take urgent action to release the 57 men still held at Guantánamo who have been approved for release by high-level governmental review boards, and who, for the most part, have been waiting over five years to be freed, Justice John Paul Stevens, a Supreme Court Justice from 1975 until his retirement in 2010, made a speech at which he not only urged the release of these men, but also suggested that some of them may be due compensation for their long and ultimately unjustifiable ordeal. The 57 men make up almost half of the total of 122 men still held, and include, prominently, Shaker Aamer, the last British resident in the prison.

This is not, of course, the first time that former Justice Stevens, who is now 95 years old, has dealt with Guantánamo. When he retired, SCOTUSblog — the official Supreme Court blog — ran a series of articles about him, and in one of these articles, “Justice Stevens, Guantánamo, and the Rule of Law,” Daniel A. Farber, a law professor at Berkeley who clerked for him in 1976, explained the importance of his role in the 2004, 2006 and 2008 Supreme Court rulings that granted the prisoners habeas corpus rights (Rasul v. Bush in June 2004 and Boumediene v. Bush in June 2008, which I wrote about here), and that dealt with the legality — or rather the lack of it — of the military commission trial system at Guantánamo (Hamdan v. Rumsfeld in 2006).

Justice Stevens wrote the majority opinion in Rasul v. Bush, in which, almost two and a half years after Guantánamo opened, and after a long journey through the lower courts, the Supreme Court “held that the habeas statute covered Guantánamo,” and turned down the Bush administration’s argument that the prison was on foreign soil. Although Congress then passed legislation that purported to block the prisoners’ habeas rights, the ruling allowed lawyers to take on prisoners as clients, and to visit the prison, breaking through the veil of secrecy that had allowed torture and other forms of abuse to proceed unchecked.

Farber noted that “Justice Stevens’s Rasul opinion carefully dissected the precedents on habeas jurisdiction outside the United States,” adding, “The result was a pivotal ruling in terms of the rights of the Guantanamo detainees, who would otherwise have had no access to federal courts in which to challenge their treatment.” Moreover, in steering the court towards justice, Justice Stevens had had to deal with three prominent opponents, Justice Scalia, then-Chief Justice Rehnquist, and Justice Thomas, who all dissented from the majority opinion.

Farber’s article continued:

Two years later, in Hamdan v. Rumsfeld, Justice Stevens led the Court in overturning the Bush Administration’s efforts to evade legal restrictions. His opinion built on Rasul and also showed that the Court was not inclined to acquiesce to congressional or presidential efforts to limit its jurisdiction … In an opinion by Justice Stevens, the Court held that the President lacked the power to establish military tribunals under congressional enactments and under the Geneva Conventions. Specifically, the Court held that the military commission convened to try Salim Ahmed Hamdan, who allegedly served as Osama bin Laden’s driver and bodyguard, lacked the power to proceed because its structure and procedures violated both the Geneva Conventions and the Uniform Code of Military Justice.

Writing for the majority, Justice Stevens also reasoned that regardless of whether Hamdan had been charged with an offense generally cognizable by military commissions, the commission here did not have the authority to proceed because its procedures were illegal. Summarizing the Court’s holding, Justice Stevens said that “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the rule of law that prevails in this jurisdiction.”

Hamdan, specifically, led to Congress passing the Military Commissions Act of 2006, which purported to remove the right to habeas corpus for any “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” This ruling built on the Detainee Treatment Act of 2005, which sought to prevent lawyers for the Guantánamo prisoners filing any new habeas petitions, and led to court challenges about whether or not the law applied retroactively to petitions filed between the passage of Rasul and the passage of the DTA.

As Farber pointed out, however, “Congress’s decision to step into the detainee issue did not deter the Court,” which “struck down the MCA’s jurisdiction-stripping provision in Boumediene v. Bush.” He added, In an opinion by Justice Kennedy, the Court held that the United States’ de facto sovereignty over Guantanamo was sufficient to bring it within the scope of the constitutional guarantee of habeas and that the MCA was therefore a violation of the Suspension Clause of the Constitution. Justice Stevens joined Justice Kennedy’s opinion and did not write separately. But as a concurrence by Justice Souter explained, Boumediene was a predictable extension of Justice Stevens’s opinion in Rasul.

Farber also wrote:

Technically, Rasul rested on statutory grounds whereas Boumediene rested on constitutional grounds, but the language in Rasul suggested fundamental objections to depriving detainees of habeas protections. Thus, as the concurring Justices said, “[N]o one who reads the Court’s opinion in Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases, given the Court’s reliance on the historical background of habeas generally in answering the statutory question.”

Farber also noted that, in “a vehement if not intemperate dissent, Justice Scalia  played to the galleries with an angry proclamation that the Court’s decision would ‘almost certainly cause more Americans to be killed,’ and that the ‘Nation will live to regret what the Court has done today.'”

The result of Boumediene was not as Justice Scalia predicted, and, between October 2008 and May 2010, 32 men subsequently had their habeas petitions granted, and were freed. Unfortunately, the fearmongering and distortions aired by Justice Scalia were picked up by appeals court judges, who essentially shut down habeas for the prisoners in a series of rulings in 2010 and 2011 that overturned a number of successful petitions, and made sure that all new petitions were turned down.

Unfortunately, by this point, Justice Stevens had retired, and when these prisoners appealed to the Supreme Court, they were turned down. It is, I think, no exaggeration to say that, had Justice Stevens not retired, the Supreme Court might, once more, have addressed issues relating to the prisoners. As Daniel Farber noted, “Although the post-9/11 cases reflect special concerns relating to national security and presidential power, they also reflect preexisting disputes among the Justices about how to interpret statutes involving habeas jurisdiction. Justice Stevens’s support for habeas was not an ad hoc attempt to check the Bush Administration, but instead rested on a deeper commitment to ensuring access to the courts.”

In his speech in Washington, D.C. on May 4, which I have transcribed below, Justice Stevens began by speaking about the extent to which fear dictates important decision-making processes, and reminded his audience of how, in the Second World War, fear led to the mass internment of US citizens of Japanese ancestry.

Moving on to Guantánamo, Justice Stevens referred to two similar decisions: the decision to set up a prison at Guantánamo “to perform functions that either could be performed effectively on the mainland, or should not have been performed at all, and the later decision to prohibit the transfer of any person detained at Guantánamo to the United States.”

Justice Stevens added that, “Just as the Congress ultimately recognised that the fear-inspired decision made at the outset of that war was mistaken, in time our leaders will acknowledge that some or all of those 57 detainees are entitled to some sort of reparation,” a bold statement, given that one of the primary functions of government lawyers is to constantly find ways to prevent accountability for any government actions, in large part to prevent compensation claims. Nevertheless, I am delighted to hear such a prominent figure as Justice Stevens state that “some or all” of the 57 men approved for release are “entitled to some sort of reparation.”

Justice Stevens added that he was not suggesting that every Guantánamo prisoner is “entitled to compensation,” ruling out, for example, “those who have been convicted by a military commission.” However, as he added, those “who have been deemed not a security threat to the United States and have thereafter remained in custody for years are differently situated.”

In the rest of his speech, Justice Stevens discussed a more detailed legal issue — one “requiring government to provide appropriate remedies for constitutional wrongs committed by their agents,” and for both those agents and their superiors to be given “immunity from personal liability” when they undertake their public responsibilities.

I hope you find Justice Stevens’ speech interesting, and will share it if you do. With no one released from Guantánamo for over four months, the 57 men still held who have been approved for release need as much support as possible, and the release of this speech is timely, coming, as it did, around the same time that Senators Leahy, Feinstein and Durbin wrote to President Obama to call for the release of the 57 men approved for release but still held.

Justice John Paul Stevens (Ret.)

Lawyers for Civil Justice Membership Meeting
St. Regis Hotel, Washington, D.C., May 4, 2015

Reflections About the Sovereign’s Duty to Compensate Victims Harmed by Constitutional Violations

Fear plays a more important role in the process of making important decisions at the outset of international hostilities than is often recognized. That emotion sometimes leads to erroneous decisions that do far more harm than good. President Franklin D. Roosevelt’s decision to approve the mass relocation and internment of thousands of American citizens of Japanese ancestry during World War II is a vivid example of such a decision.

The hardships caused by that decision prompted Congress to enact the American Japanese Claims Act of 1948, permitting Japanese Americans to apply for compensation for property losses suffered as a result of their relocation. The $37 million disbursed pursuant to that statute, however, represented  only a small fraction of the harms suffered by the internees. It was not until 1976, when Gerald Ford acknowledged that the internment was “wrong” and a “national mistake” that “shall never be repeated” that most Americans became fully aware of the magnitude of the error. Congress subsequently enacted the Civil Liberties Act of 1988, which provided financial redress of $20,000 for each surviving internee, totaling $1.2 billion. The statute included an official apology acknowledging that “a grave injustice [had been] done to both citizens and permanent residents of Japanese ancestry.” A few years later Congress authorised the construction of the memorial on new jersey Avenue, a few blocks from the Capitol. That monument should serve as a reminder of the need to be especially vigilant when fear provides the primary motivation for an important decision.

Today I plan to say a few words about two such decisions: the decision to use facilities at the naval base in Guantánamo, Cuba to perform functions that either could be performed effectively on the mainland, or should not have been performed at all, and the later decision to prohibit the transfer of any person detained at Guantánamo to the United States. I shall also comment on a mistake made by the Supreme Court in a detention case, and propose a remedy that would minimize the risk of similar mistakes in future.

I

Since January 2002, when the government began using Guantánamo as a detention facility, almost 800 individuals have been detained there. About two-thirds of them were released when George W. Bush was President. Of the 242 prisoners being detained when Barack Obama took office, 115 more have been released, reducing the present population to just over 120. Both of those Presidents have stated publicly that the entire facility should be closed. That is also the view of Cliff Sloan, the State Department’s former envoy who wrote a persuasive op-ed piece in the New York Times four months ago in which he quoted a high ranking security official from one of our staunchest allies as stating: “The greatest single action the United States can take to fight terrorism is to close Guantánamo.” In that article, Cliff also described the cost of maintaining the facility as “eye-popping” — he estimated that it is around $3 million per detainee as compared with roughly $75,000 at a supermax prison in the United States. While I whole-heartedly agree with the view that we should put an end to our wasteful extravagance as promptly as possible, a sub-segment of the Guantánamo population is most directly relevant to a change in the law that I shall propose.

There are 50 detainees who were approved for transfer more than five years ago and an additional seven who were more recently approved. All of them received approval from six executive departments and agencies — the Department of Defense, the Joint Chiefs of Staff, the Director of National Intelligence, the Department of Justice, the Department of Homeland Security, and the Department of State. These six agencies agree that none of the 57 detainees poses a significant security threat to the United States. Despite concluding that these 57 individuals should be transferred out of Guantánamo, the government continues to claim legal authority to detain them as unprivileged enemy belligerents.

One of the reasons that they remain in custody is that Congress has enacted a flat ban on the transfer of any Guantánamo detainee to the United States for any reason whatsoever. Another reason is that Congress has imposed restrictions on the President ‘s ability to transfer detainees to foreign countries. Before such a transfer can occur, the Secretary of Defense must send congressional committees a letter thirty days beforehand explaining that the receiving country has taken or will take steps to “substantially mitigate the risk” that the individual will engage in hostilities against the United States. The Secretary must further explain why the transfer is in the national security interests of the United States. These onerous provisions have hindered the President’s ability to close Guantánamo, make no sense, and have no precedent in our history. Congress’s actions are even more irrational than the detention of Japanese American citizens during World War II.

Just as the Congress ultimately recognized that the fear-inspired decision made at the outset of that war was mistaken, in time our leaders will acknowledge that some or all of those 57 detainees are entitled to some sort of reparation. Of course, I by no means suggest that every Guantánamo detainee, such as those who have been convicted by a military commission, is entitled to compensation. But detainees who have been deemed not a security threat to the United States and have thereafter remained in custody for years are differently situated.

II

The Supreme Court decision that I have described as a mistake was Justice Kennedy’s opinion for the five-justice majority in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Iqbal was a citizen of Pakistan and a Muslim, who was arrested in the United States and detained by federal officials shortly after the terrorist attacks on September 11, 2001. He was found guilty of violations of our immigration laws and deported. Thereafter he brought suit against numerous federal officials alleging that he had been mistreated while he was incarcerated in a maximum security unit in Brooklyn. He was one of 184 “high interest” detainees suspected of complicity in the terrorist attacks. His complaint described unconstitutionally harsh treatment, motivated by hostility to his religion. Among the many officials who he named as defendants were John Ashcroft and Robert Mueller, who had been the Attorney General of the United States and Director of the Federal Bureau of Investigation while Iqbal was allegedly being abused. Assuming arguendo that Iqbal had been injured by unconstitutional conduct, Ashcroft and Mueller moved to dismiss the complaint against them on the ground that it had not adequately alleged their responsibility for the adoption of the policy. The District Court denied the motion and the Court of Appeals unanimously affirmed. The Supreme Court, however, reversed by a vote of five to four.

In his opinion for the majority, Justice Kennedy pointed out that Ashcroft and Mueller could not be held liable on a theory of respondeat superior; they were responsible for their own conduct, but not for that of their agents. And the opinion seems to suggest that the unconstitutionality of the policy depended on its having been motivated by hostility to Iqbal’s race or religion. The Court held that his allegations had not “nudged” his claims of invidious discrimination “across the line from conceivable to plausible.” In contrast, in his dissent Justice Souter discounted the importance of the motive for the policy; he reasoned that Ashcroft and Mueller would be liable if they knew about the alleged harsh policy and were “deliberately indifferent” to its provision. While I remain convinced by Justice Souter’s dissent, I think the majority’s decision may represent an understandable reluctance to impose personal liability on dedicated public officials attempting to minimize the risk of another terrorist attack.

If a policy of brutal interrogation of potential terrorists did violate their constitutional rights, the doctrine of respondeat superior should impose liability on the government for the wrongs committed by its agents. On the other hand, the law should also provide both those agents and their superiors with immunity from personal liability just as it provides such immunity to prosecutors who violate the Constitution. Even if Ashcroft and Mueller may have encouraged or tolerated improper efforts to obtain information about potential threats, we should presume that they were motivated by their interest in protecting the public from harm and not subject them to the risk of personal liability. If Iqbal’s allegations are true, the federal government, rather than individual executives, should make him whole.

III

The individuals who made the decision to intern loyal American citizens of Japanese ancestry made a terrible mistake but corrective action was, in due course, provided by the sovereign, not by any or all of the individuals responsible for the mistake. Mistakes that may have been made at Guantánamo may ultimately be redressed by the government without the costs and burdens associated with litigation and without imposing individual liability on everyone who violated the law. And one day we may have the wisdom to change the law in two constructive ways. First, recognizing respondeat superior as a basis for requiring government to provide appropriate remedies for constitutional wrongs committed by their agents. And second, providing immunity from personal liability for those agents and their superiors, who — like prosecutors — should be able to perform their public responsibilities fearlessly. If they violate the law when trying to do their jobs, the sovereign — not the person injured by their misconduct — should determine the appropriate sanction for their misconduct. And the sovereign, rather than its individual agents, should be responsible for providing an appropriate remedy for their wrongs.

Thank you for your attention.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

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