In a world where the traditional rules of war became obsolete on September 11, 2001, how should a country founded on the rule of law deal with captured foreign nationals? The Center on Law and Security at the NYU School of Law hosted renowned constitutional law scholars to debate whether and how U.S. courts should assess the procedural rights of suspected Al Qaeda members detained at a Navy base in Guantánamo Bay, Cuba.
At the time of the February 2004 debate, more than two years of incommunicado captivity had elapsed for the 600-plus detainees held in Cuba. The U.S. executive branch and military assert that the detainees are “unlawful combatants” under international law, who may be held indefinitely with only the minimal procedural protections afforded by military tribunals. Lawyers for two groups of detainees are attempting to challenge their detention before a U.S. civilian court. (In June, the Supreme Court rejected the government’s claim that it can hold “enemy combatants” without giving them a day in court.)
For a case that appeared to reside at the crossroads of personal liberty and national security, the legal issue at the heart of the Guantánamo Bay proceedings sounded rather technical: Did the United States in fact have jurisdiction over the Navy base, which it has leased from Cuba for more than 100 years? Lower courts had ruled that Cuba, and not the United States, had sovereignty over the base and U.S. courts cannot assert jurisdiction over the detainee’s claims.
The NYU School of Law’s Professor Rachel E. Barkow warned against deploying formalistic arguments in resolving the detainees’ claims. Having read the wide-ranging amicus briefs filed in the Guantánamo Bay cases, Barkow concluded that the U.S. Supreme Court’s own legitimacy and the credibility of U.S. rule of law was at stake. She cited a brief filed by members of the British Parliament, which urged the Supreme Court to consider how a ruling denying judicial access would appear to the rest of the world. A consortium of international diplomats echoed this plea in an amicus brief declaring that dismissal of the detainees’ claims on narrow jurisdictional grounds would sabotage diplomatic efforts.
Professor David Golove, a faculty codirector of the Center, described two models for dealing with detained foreign nationals— peacetime and wartime—and characterized the Bush administration as “extremely aggressive” in adopting a wartime posture. Golove contrasts the current war on terror with “total war” situations of the American Civil War and World War II, during which much of current U.S. jurisprudence on military detention was developed. Courts should reject a wartime model for the Guantánamo cases, he argued, because of the likelihood of bystanders being mistaken for belligerents, the indefinite duration of the war on terror, and the unclear nationalities of terrorists whose actions do not necessarily implicate their country of citizenship.
Ruth Wedgwood, professor of international law and diplomacy at the John Hopkins School of Advanced International Studies, countered that the September 11 attacks were recognized by NATO, the United Nations, and Congress as acts of war, and that Congress authorized the use of force against the Taliban and Al Qaeda. Wedgwood insisted the U.S. military provided due process when it whittled the original 10,000 Al Qaeda captives down to 600. Nothing in international law subjects this process to further appeal, she asserted, adding that “you can’t have Article III judges roaming the battlefield.”
The panel took place during a week when aides discovered poisonous ricin powder in the offices of the U.S. Senate majority leader and terrorists bombed a Moscow subway— proving the event to be a timely and essential exploration of the proper legal response to 21st-century methods of war.