‘There is No Law There At All’

If there's an upshot to the wrangling last week over whether top Bush administration officials intended at a key meeting to discuss the fate of Guantanamo Bay, it's this: the closing of the detention center there now seems inevitable. Advocates like Defense Secretary Robert Gates and Secretary of State Condoleezza Rice have gained the upper hand in the debate, in part by arguing that if President Bush doesn't shut Guantanamo soon, Congress will. But what will that mean for the 400 or so detainees there? Bush has argued that the detainees are enemy combatants—a special status that exempts the United States from granting them the rights of either Americans or prisoners of war. The status is necessary, he says, in order to continue gleaning information they may have and to prevent them from rejoining the war against the U.S. Neal Katyal is a law professor at Georgetown University and one of the policy's most outspoken critics. Katyal successfully argued Hamdan v. Rumsfeld, the 2006 Supreme Court case that struck down President Bush's military tribunals at Guantanamo.  In this e-mail exchange with NEWSWEEK's Dan Ephron, Katyal speculates the Bush administration will try to continue denying the detainees basic rights like habeas corpus even after they're transferred to U.S. soil.

NEWSWEEK: If a decision is indeed made to close Guantanamo, what are the implications for trials? Will the transfer of prisoners to U.S. soil avail them to rights they've been denied at Guantanamo?
Neal Katyal: Officials in the [Bush] administration (most prominently the vice president and attorney general), according to news reports, have claimed as much as a reason not to close Guantanamo.  This is a rather odd claim, though, since it contradicts two filings that Mr. Gonzales himself has made in court: (1) that the enemy combatants on U.S. soil have no constitutional rights (he has said this in several cases, including Jose Padilla and Ali Selah Kahlah al-Marri) and (2) that the military commission trials will be fair and comply with our law.  If he is so sure that the trials will be fair, then why not have them in the United States?  Of course, they don't really believe that they will be fair, which is why they want to have the trials far away under a dubious legal theory that they can put people through any manner of detention and fake trial without violating the Constitution of the United States.

In that case, what does closing the detention center actually change in terms of the detainees?
In actuality, it does not change much in terms of the rights they receive.  A majority of the Supreme Court has already said in 2004 that Guantanamo is essentially United States territory for purposes of extending fundamental constitutional rights to detainees.  The administration has had a convoluted reading of that decision that has permitted them, thus far, to escape that ruling's force.  But I think that most reasonable observers believe when the case gets back to the Supreme Court, the justices will repudiate the administration's stretched legal reasoning.  So, in effect, what I think some of the cooler heads in the administration are saying is that since they know they will lose these arguments in the court, they should abandon this approach now instead of facing another humiliating defeat.

Can you speculate about the timing of these discussions to close Guantanamo. Why now?
Well, as those noted liberals, Secretary of Defense Robert Gates, Secretary of State Condoleeza Rice and former secretary of State and chairman of the Joint Chiefs Colin Powell have all said, Guantanamo is a net harm to our nation's security.  No one has been tried there.  It is a festering eyesore that diminishes our credibility in the eyes of the world, and diminishes American values.

If the center is closed down, there's speculation that many of the prisoners would need to be released outright. Your thoughts on that?
That's bogus.  I don't know anyone who believes that. The president will always have the power to detain people who truly should be detained—the only question will be the process in place to evaluate his decisions. There's nothing wrong with courts-martial (our standard military system) or other detention facilities; the administration is just afraid to admit that they were wrong when they recklessly gambled on an unproven legal strategy—a strategy that had as its centerpiece, legal claim that the president could do whatever he wants, whenever he wants. The courts have rightly condemned that approach.

But the courts have also indicated they won't accept challenges, for now anyway, to the Military Commissions Act. If closing down Gitmo just means a change of venue for the prisoners and nothing else, what's your next course of action in terms of fighting for things like habeas corpus and the other rights denied to the detainees?
I don't quite think the courts have said that.  Mr. Hamdan's case is currently pending in the nation's second highest court, the United States Court of Appeals for the D.C. Circuit.  He is contesting exactly that question—can he be stripped of his right of habeas corpus?  We have asked the full court, instead of a three-judge panel, to hear his case. The court has ordered the government to respond to our request later this week.