Remembering Judge John J. Gibbons, The Man Who Brought Habeas Corpus to Guantánamo

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Here at “Close Guantánamo,” we are saddened to hear of the death, at the age of 94, of Judge John J. Gibbons, who was one of the signatories to our initial mission statement when we first launched “Close Guantánamo” on January 11, 2012, the 10th anniversary of the opening of the prison. Appointed in 1970 to the United States Court of Appeals for the Third Circuit, in Philadelphia, by Richard Nixon, he served on that court for 20 years, the last three as Chief Judge. While at the court, he authored more than 800 opinions.

When he left the bench, Judge Gibbons became a Professor of Law at Seton Hall University School of Law in New Jersey, and also rejoined the firm he had been part of prior to becoming a judge, which become known as Gibbons, Del Deo, Dolan, Griffinger & Vecchione in 1997, and then Gibbons P.C. in 2007.

Although he was a Republican, and, as Chris Hedges noted in a New York Times profile in February 2004, “his politics tend[ed] to veer to the conservative,” he was also “at once an insider and an outsider,” something of a “gadfly” at his largely corporate firm, where he was “one of the state’s leading crusaders against the death penalty.” He had, he told Hedges, “always been outraged by the use of the death penalty,” which was why his firm “filed ‘friend of the court’ briefs in almost every death penalty case in New Jersey.”

As he said, “It is horrible that in a civilized country the arbitrary imposition of revenge continues to exist. This does not exist in any other industrialized democracy in the world. We are completely out of step. We should be ashamed.”

As Hedges also noted, the law for Judge Gibbons was “not partisan.” It was “not about choosing those we do not like, or do like, and then determining if they receive full legal rights.” As he said, “Sometimes the people we represent have committed heinous crimes. We are often not very popular for the work we do, but our job is to make sure the law applies to everyone. Unpopular people need representation. They frequently present the most interesting and challenging legal questions.”

For those taking an interest in Guantánamo, Judge Gibbons needs to be remembered for having made sure that the crucial notion that the law applies to everyone, and cannot be applied selectively, also applied to the prisoners at Guantánamo.

Judge Gibbons argued for the Guantánamo prisoners in Rasul v. Bush, a ground-breaking case named after the British prisoner Shafiq Rasul. This case came before the Supreme Court in 2004, and led to the most significant manifestation of the reach of the law at Guantánamo, when the Supreme Court ruled on June 28, 2004 that the Guantánamo prisoners had habeas corpus rights; in other words, that they had the right to ask a judge to rule impartially on the basis of their imprisonment, which, until that point, had been considered unreviewable by the Bush administration.

That ruling, crucially, pierced the veil of secrecy that had shrouded Guantánamo for the first two and half years of its existence, allowing prisoners, with impunity, to be tortured and subjected to other forms of abuse, by allowing attorneys to visit the base and to take on clients to represent in court.

Unfortunately, Congress was then prevailed upon by the Bush administration to pass new laws taking away the prisoners’ habeas rights, and it was not until June 2008 that the Supreme Court again considered their cases, this time rebuking Congress for having acted unconstitutionally, and confirming that the prisoners had constitutionally guaranteed habeas rights.

That ruling, Boumediene v. Bush, in June 2008, led to around three dozen prisoners having their releases approved by judges, who ruled that the government had failed to establish that the men in question had any meaningful connection to either al-Qaeda or the Taliban. Unfortunately, Boumediene was then fatally and cynically undermined by politically motivated judges in the Court of Appeals in Washington, D.C., who, in a series of rulings from 2009 to 2011, ended up requiring the lower court judges to regard everything submitted by the government, however risible, as presumptively accurate, thereby, sadly, gutting habeas corpus of all meaning for the Guantánamo prisoners.

Outrageously, those rulings have not been overturned, and the Supreme Court has persistently refused to revisit the Guantánamo litigation, thereby allowing the D.C. Circuit Court to have thoroughly undermined Boumediene, and to have effectively set detainee policy themselves.

For us, it is profoundly sad that Judge Gibbons died, 14 and a half years after the Rasul ruling, with Guantánamo still open, and with men held there who are still effectively deprived of the legal remedy that he did so much to guarantee them back in 2004. And that, fundamentally, is a sad indictment of America today.

Below we’re cross-posting parts of an interview with Judge Gibbons that ran in the the Metropolitan Corporate Counsel magazine in 2005, the year after Rasul, in which he explained what had happened in the litigation, and why it was so important.

Excerpts from a 2005 interview with Judge John J. Gibbons

Editor: How did you come to be among the lawyers representing the detainees that are incarcerated at Guantánamo Bay?

Gibbons: Shearman & Sterling’s Washington office filed petitions for habeas corpus on behalf of a number of Kuwaiti citizens, and the Center for Constitutional Rights in New York filed on behalf of some nationals of other countries. When those petitions were filed, a number of organizations, including a group of former federal judges, filed amicus curiae briefs in support of a grant for certiorari. I was among the judges and acted as spokesman for them. The briefs dealt with a broad cross section of cases supporting our position. They discussed Korematsu v. United States, which dealt with the internment of U.S. citizens of Japanese descent during World War II, and Mr. Korematsu filed our amicus brief. William Rogers acted as spokesman for a group of former diplomats. The amici even included a group of Members of Parliament who were interested in the rights of British detainees. When certiorari was granted, the two groups representing the petitioners asked me to help with the Supreme Court briefs and to argue the case.

Editor: Can you give our readers an overview of the United States Supreme Court determination in Rasul v. Bush?

Gibbons: The government had managed to convince the lower courts that there was no federal court jurisdiction to consider an application for a writ of habeas corpus on behalf of a non-citizen detained in a country over which the U.S. exercised no jurisdiction or control. The circuit court of appeals decision was a straightforward syllogism, with a major premise stating that an applicant can only get habeas corpus if detained in violation of the Constitution and laws of the United States. The minor premise was that non-citizens outside the United States do not have Constitutional rights, and the conclusion, therefore, was that the courts could do nothing.

Both premises were false. The language in the habeas corpus statute referring to detention in violation of the Constitution was not put in that statute until the 1870s to enforce the Thirteenth Amendment. The other part of the statute, which dates from well before the Bill of Rights was adopted, says nothing about Constitutional rights. It says that habeas corpus exists to determine the legality of detention simpliciter. All that has ever been required is federal detention. The government’s fall-back position was that the United States writ does not extend to Guantánamo Bay, which, it argued, is under Cuban sovereignty. The Supreme Court rejected this argument.

Editor: And access to counsel?

Gibbons: The Supreme Court implicitly recognized that the detainees had the right to counsel, but when the case was remanded to the district court, the government took the position that counsel had to have secret security clearance and that the matter was so delicate that anything counsel was told had to be turned over to the government. The government was not very good at facilitating clearance, and it took four months for me to receive clearance.

The detainees had no process for a determination of their status. Shortly after the Rasul decision, the government put in place a status review procedure which is conducted for each detainee annually [the Combatant Status Review Tribunals, expertly dissected here by a former official involved in implementing them]. However, the detainees can have a military representative but not a lawyer. There is no question that this process does not satisfy due process or the requirements of the Geneva Conventions or customary international law. That is the issue now pending in the Court of Appeals for the District of Columbia [as part of the litigation that needed up back at the Supreme Court in Boumediene v. Bush].

Editor: What is the status of the detainees?

Gibbons: If they are not military, they are civilians. There is a provision in the Geneva Conventions on the treatment of civilian detainees, and the government has refused to apply it. The government takes the position that American courts cannot enforce the Geneva Conventions because they are not self-executing treaties and no implementing legislation has been passed. That is not a very strong argument. Recently an amicus curiae brief was filed in the DC Circuit on behalf of the World Organization for Human Rights which lays out U.S. obligations to enforce the Geneva Conventions and other provisions of international law.

Editor: To what extent are the non-United States citizens entitled to protections guaranteed by the United States Constitution?

Gibbons: These rights are afforded to people and not just citizens. The due process clause says people. The distinction between citizens and non-citizens was decided in a 1990 case, United States v. Verdugo, in which the Supreme Court held that in a trial within the U.S. the government could use evidence obtained in Mexico in compliance with Mexican law but without a warrant authorized by a federal court against a Mexican citizen. The government contends that this decision means that no non-citizen has any rights under the Constitution.

Editor: What is your response to those who say that terrorists do not deserve the same rights afforded to others?

Gibbons: For starters, I am not certain that the connection of these detainees to terrorism holds up. Many of them were apprehended far away from places where American troops are engaged in combat. Indeed, some of them were captured by bounty hunters. It is for a court of law to determine whether there is a legitimate reason for detaining them. The idea that their status can be determined solely by military personnel with no legal training and in the absence of any attempt to investigate the facts is preposterous.

Editor: Is it possible to adhere to the rule of law and win the war on terrorism?

Gibbons: Certainly. The “war on terrorism” is a term of indefinite meaning. On the one hand, the Executive Branch takes the position that it is a war and that therefore the Commander-in-Chief’s powers are not curtailed. On the other hand, the Administration argues that it is not a war when it comes to protections specifically applicable to war, such as the Geneva Conventions. The rule of law is required for everyone’s protection. After all, if they can do this to the Guantánamo detainees, they can do it to me.

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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, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in 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), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, the resistance continues.

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