After Guantánamo Bay promise, Trump should prepare for court battle

UNITED NATIONS. The second time I went to Guantánamo Bay naval base, known as JTF-GTMO, to report on the Afghan detainees, the George W. Bush administration had changed the customs rules, attempting to make the point before the U.S. Supreme Court decision, that the base, located in Cuba, was not part of U.S. territory.

When I traveled to the base at the eastern tip of Cuba in 1995, I received Department of Defense clearance and flew direct from Fort Lauderdale, Fla., on Fandango Airlines to the base, and did not have to clear United States customs on my return flight to Fort Lauderdale, Fla., an indication that I was not considered to have left the United States at any time during my journey. At that time, the base was not a detention center but rather a holding ground for “boat people” from Cuba and Haiti, considered outside U.S. jurisdiction, a place that enabled the White House to decide if those people picked up on the high seas would be returned, without the protection of the U.S. Constitution.

{mosads}When I visited again in 2003, I returned by way of Puerto Rico, clearing customs in San Juan, reflecting a policy change that would not deprive the Supreme Court of the opportunity to decide the fundamental question of the rights of anyone being held in U.S. custody.

That change, and my trip, became part of the Supreme Court docket in 2004, when the U.S. Supreme Court decided that even non-U.S. citizens have rights.

In the 16 years since the first detainee arrived, 800 men and boys have arrived at the base and 41 remain there today. President Trump wants to keep the base open for detainees, and add more. He has directed his Secretary of Defense, James Mattis to report back in three months time about what needs to be done to transfer new terrorist suspects to the detention center on the base.

What the new policy fails to recognize is how difficult that policy change will be and why the Trump administration has chosen U.S. courts to try terror suspect instead of transferring them to Guantánamo.

How did the base become a detention center? Teddy Roosevelt is largely responsible for the establishment of the base, which was leased in virtual perpetuity (not in a legal sense) as “war booty” to the United States by Spain at the end of the Spanish American War in 1898. The Guantánamo Bay Naval Base was leased to the U.S. in an agreement — unlike other historic agreements — that requires both parties (the U.S. and the Government of Cuba) to agree to end the lease, giving the U.S. a quasi-permanency on Cuban territory — a history that was key to the court decisions about U.S. law and the detainees.

For George W. Bush’s two terms and extending through the eight years of Barack Obama, the courts tousled with the office of the commander-in-chief about the legality of bringing foreigners from the battlefield — eventually known as “detainees” to avoid calling them prisoners of war — to the U.S. military base in Guantánamo Bay, Cuba, and how to determine their rights to a trial.

The drawn-out process was a lesson, in the Framer’s system of checks and balances. Separation of powers won the day, not executive prerogative, in a series of cases and Congressional action.

Court action: Rasul v. Bush  After creating a prison for detainees brought in from the Afghan battlefield, the Bush administration decided that it would hold detainees without legal rights that would be afforded under U.S. law. The Supreme Court held that even non-citizens outside the country had rights, in particular, the Constitutional right to habeas corpus, a right of action under both a federal law and the Constitution. That complicated decision was based on the 1903 lease under which the U.S. has a base in Cuba that gave the U.S. “operational sovereignty.”

Legislative reaction: The U.S. Congress passed the Detainee Treatment Act of 2005 as part of a Defense Department Authorization Act, giving detainees a Combatant Status Review Tribunal (CRST) hearing, and took away their right to be heard in a U.S. court under a writ of habeas corpus. (It also dealt with means of interrogation.)

Court action: Hamdan v. Rumsfeld The Supreme Court held that the Bush Administration and Donald Rumsfeld as Defense Secretary, did not have the authority under the U.S. Constitution, limiting executive authority, to create the CRSTs.

Legislative Reaction: Military Commissions Act of 2006, signed by President Bush, authorized trial by military commissions.

Court action: Boumediene v. Bush The Supreme Court held that detainees have a right to a writ of habeas corpus and that the Military Commissions Act of 2006 was an unconstitutional suspension of that right. Justice Kennedy wrote: “The 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.”

In mid-January, a new court case began with a habeas corpus petition on behalf of 11 of the remaining detainees.

After all the court cases — and the fact that torture of detainees became a U.S. and international cause celebre, Obama tried to “close” Guantánamo but failed. Only 13 of the hundreds of detainees have been convicted or have active cases under the military commission system.

Flash forward to Tuesday night’s State of the Union, when President Trump said that he said had just signed an order directing Defense Secretary James N. Mattis to re-examine the military detention policy and to keep open the detention facilities in Guantánamo Bay, Cuba. “I am asking the Congress to ensure that, in the fight against ISIS and al-Qaida, we continue to have all necessary power to detain terrorists — wherever we chase them down, wherever we find them,” he said. “And in many cases, it will now be Guantanamo Bay.”

The Executive Order invoked the authority of the  2001 Authorization for Use of Military Force (AUMF).Terrorists are not merely criminals, the president said, but unlawful enemy combatants. “And when captured overseas, they should be treated like the terrorists they are,” he said.

If you look at the first Supreme Court ruling, Justice Ruth Bader Ginsburg went back and forth in a fascinating oral argument in the Rasul v. Bush case.

Justice Ginsberg asked U.S. Solicitor General Theodore B. Olsen, whose wife had died in the 9/11 attacks, about the reference to an earlier case:

“Why would the Court think it necessary to say this is what we confronted in this case which makes it worlds different from our case, where there has been no trial and conviction, where these people are saying, and we must accept for the moment that it’s true, that they are innocents. That they are not combatants of any kind.”

Justice Ginsburg added, “I think Guantanamo, everyone agrees, is an animal, there is no other like it.”

Thus began the litigation, court cases based on the decision that even non-citizens outside the country had rights under the U.S. Constitution.

The composition of the Court has changed, but the principles of the Constitution have not.

See you in Court, Mr. President.

Pamela Falk, a U.N. resident correspondent and CBS News TV & Radio foreign affairs analyst, is former staff director of a subcommittee of the House of Representatives and a Columbia Law School alum. Follow her on Twitter @PamelaFalk.