The more I mull over the Hamdan decision (pdf), the clearer it seems that it's a mistake to focus exclusively on its implications for the prisoners at Guantanamo. Don't get me wrong: there are surely innocent people down there, held without contact with the outside world, often in prolonged isolation, whose families and loved ones may not know whether or not they are alive; and every single one of them who has a chance to contest his imprisonment in a fair hearing has gained something of enormous value. It's just that this isn't all that's at stake; and that's true in both a good and a bad way.
The good news, of course, is that this decision really does seem not just to extend the Geneva Convention's Article 3 to all detainees, but to demolish the administration's claim that both the Authorization for the Use of Military Force and Article II of the Constitution give him the right to do whatever he wants, including ignoring existing statutes. I cheered when I read this footnote from the majority opinion:
"“Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.”"
Congress does have war powers! The President cannot disregard statutes at will! We live in a Republic, not a dictatorship! It's a sad commentary on our present circumstances that things like this have to be reaffirmed, but it would, of course, be vastly worse had they been denied. (As they could easily have been had Bush been able to nominate one more Justice, and had Roberts not had to recuse himself.)
However, these points have already been made very well by Glenn Greenwald, Marty Lederman, Jack Balkin, and Karl Blanke. Rather than repeat what they have said more elegantly, and with a lot more knowledge to back it up, I'm going to focus on the bad news, which is: this decision in no way ensures that all, or even most, of the people our government is currently detaining outside the normal legal system will have any rights or recourse whatsoever.
Why is that? One word: Bagram.
"Other military and administration officials said the growing detainee population at Bagram, which rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures, was in part a result of a Bush administration decision to shut off the flow of detainees into Guantánamo after the Supreme Court ruled that those prisoners had some basic due-process rights. The question of whether those same rights apply to detainees in Bagram has not been tested in court.
Until the court ruling, Bagram functioned as a central clearing house for the global fight against terror. Military and intelligence personnel there sifted through captured Afghan rebels and suspected terrorists seized in Afghanistan, Pakistan and elsewhere, sending the most valuable and dangerous to Guantánamo for extensive interrogation, and generally releasing the rest.
But according to interviews with current and former administration officials, the National Security Council effectively halted the movement of new detainees into Guantánamo at a cabinet-level meeting at the White House on Sept. 14, 2004.
Wary of further angering Guantánamo's critics, the council authorized a final shipment of 10 detainees eight days later from Bagram, the officials said. But it also indicated that it wanted to review and approve any Defense Department proposals for further transfers. Despite repeated requests from military officials in Afghanistan and one formal recommendation by a Pentagon working group, no such proposals have been considered, officials said.
"Guantánamo was a lightning rod," said a former senior administration official who participated in the discussions and who, like many of those interviewed, would discuss the matter in detail only on the condition of anonymity because of the secrecy surrounding it. "For some reason, people did not have a problem with Bagram. It was in Afghanistan.""
Conditions at Bagram are worse than at Guantanamo:
"From the accounts of former detainees, military officials and soldiers who served there, a picture emerges of a place that is in many ways rougher and more bleak than its counterpart in Cuba. Men are held by the dozen in large wire cages, the detainees and military sources said, sleeping on the floor on foam mats and, until about a year ago, often using plastic buckets for latrines. Before recent renovations, they rarely saw daylight except for brief visits to a small exercise yard.
"Bagram was never meant to be a long-term facility, and now it's a long-term facility without the money or resources," said one Defense Department official who has toured the detention center. Comparing the prison with Guantánamo, the official added, "Anyone who has been to Bagram would tell you it's worse.""
(Things have improved recently, though: "Corrals surrounded by stacked razor wire that had served as general-population cells gave way to less-forbidding wire pens that generally hold no more than 15 detainees, military officials said."
When wire pens holding fifteen people count as an improvement, something has gone badly wrong.)
Moreover, while many of the prisoners at Guantanamo have lawyers, those at Bagram don't:
"But some of the detainees have already been held at Bagram for as long as two or three years. And unlike those at Guantánamo, they have no access to lawyers, no right to hear the allegations against them and only rudimentary reviews of their status as "enemy combatants," military officials said.
Privately, some administration officials acknowledge that the situation at Bagram has increasingly come to resemble the legal void that led to a landmark Supreme Court ruling in June 2004 affirming the right of prisoners at Guantánamo to challenge their detention in United States courts.
While Guantánamo offers carefully scripted tours for members of Congress and journalists, Bagram has operated in rigorous secrecy since it opened in 2002. It bars outside visitors except for the International Red Cross and refuses to make public the names of those held there. The prison may not be photographed, even from a distance."
"The most basic complaint of those released was that they had been wrongly detained in the first place. In many cases, former prisoners said they had been denounced by village enemies or arrested by the local police after demanding bribes they could not pay. (...)
As at Guantánamo, the military has instituted procedures at Bagram intended to ensure that the detainees are in fact enemy combatants. Yet the review boards at Bagram give fewer rights to the prisoners than those used in Cuba, which have been criticized by human rights officials as kangaroo courts. (...)
Reviews are conducted after 90 days and at least annually thereafter, but detainees are not informed of the accusations against them, have no advocate and cannot appear before the board, officials said. "The detainee is not involved at all," one official familiar with the process said."*
Bagram is scheduled to be shut down within about a year. Most of the detainees will be turned over to the Afghan government, but some may end up in the new high-security prison our government is building near Kabul.
As I read the Hamdan decision, it does require that the protections of Article 3 of the Geneva Conventions be extended to all detainees, including these. However, there doesn't seem to be any way at all for this requirement to be enforced. It's not just that it's unclear either that Hamdan allows for an individual cause of action based on the Geneva Conventions, or that the arguments the court made in Rasul would apply to detainees held in Afghanistan. The more serious problem is: if no one other than the ICRC, which has a policy of strict confidentiality, is allowed to visit this facility; if the names of detainees are not released; if no one outside the government has any clue what's going on there, or to whom, then how on earth can anyone try to enforce the law there? How could the detainees get lawyers? And how could those lawyers possibly represent them adequately without being allowed to meet them, learn about the conditions in which they're being kept or the justification for keeping them there, and so on?
(I'd be interested in any lawyers' take on this. How would one bring the law to bear in a situation like this if the government was determined to prevent it?)
In my more cynical moments, I interpret Bush's claim that he wants to close Guantanamo down not as the expression of an idle wish, but in light of these facts. The Supreme Court, he might say, thinks we made a mistake in not treating detainees at Guantanamo in accordance with the Geneva Conventions. I think we made a mistake in allowing people access to those detainees. We corrected that mistake two years ago; we do have to figure out what to do with the detainees who are still at Guantanamo, but going forward, the Supreme Court won't be bothering us anymore. Because we have created a real legal black hole, from which no light escapes.
And if it turns out that the administration did slip up by allowing one tiny piece of information to slip out -- specifically, the name and location of their new Guantanamo -- and this somehow allows the courts to extend legal protections to the detainees there, I predict a sudden increase in the populations of the black sites, about which not even that much is known.
* Footnote: Here's the official description of the procedure for determining guilt or innocence at Bagram:
"Detainees under DoD control in Afghanistan are subject to a review process that first determines whether an individual is an enemy combatant. The detaining Combatant Commander, or designee, shall review the initial determination that the detainee is an enemy combatant. This review is based on all available and relevant information available on the date of the review and may be subject to further review based upon newly discovered evidence or information. The Commander will review the initial determination that the detainee is an enemy combatant within 90 days from the time that a detainee comes under DoD control. After the initial 90-day status review, the detaining combatant commander, on an annual basis, is required to reassess the status of each detainee. Detainees assessed to be enemy combatants under this process remain under DoD control until they no longer present a threat. The review process is conducted under the authority of the Commander, U.S. Central Command (USCENTCOM). If, as a result of the periodic Enemy Combatant status review (90-day or annual), a detaining combatant commander concludes that a detainee no longer meets the definition of an enemy combatant, the detainee is released."
That's not a procedure that even remotely resembles a trial.