Looking at Guantanamo

I mentioned in my post last Thursday that Margaret Boden, a cognitive scientist in Great Britain, has described three principal ways law is creative. The first she calls “Combinational Creativity,” which she describes as “putting familiar ideas together in unfamiliar ways.”

Putting familiar ideas together in unfamiliar ways is perhaps the type of creativity law students come to know best. As first year law students quickly learn, law is not a set of abstract rules imposed on reality. Rather, legal “rules” tend to be conditional – they are developed case by case as justifications for the results the courts deem just in those cases. But any time a new case arises that presents a new set of facts not foreseen by the courts that made the earlier decisions, the “rules” articulated in earlier cases may no longer seem just and appropriate.

The U.S. Supreme Court was faced with the need to put familiar ideas to work in a way previously unanticipated in its recent decision in Boumediene v. Bush. The Court in Boumediene decided that prisoners held at the U.S. base in Guantanamo are entitled to invoke the constitutional writ of habeus corpus to challenge their detention as “enemy combatants.” In plain English, once a person’s liberty has been taken away, he is entitled to challenge his imprisonment by requiring the government to prove before a court that it has a legitimate basis for holding him. As the New York Times has explained, the Bush administration has taken the position that it needs very little to justify holding prisoners indefinitely as “enemy combatants”:

The government sets a frighteningly low standard for itself, saying it needs only “some evidence” that a citizen has “associated” with a terrorist organization “bent on hostile acts” to hold him indefinitely.

One reason the Bush administration established its “detention center” in Guantanamo was plainly so it could argue that prisoners held there were outside U.S. territory and therefore beyond the geographic reach of U.S. courts. Thus, the administration’s thinking went, even if the only evidence against a prisoner was the word of some Afghani who had captured him that he was a member of the Taliban or Al-Qaeda, the prisoner would not be able to challenge that evidence or even present contrary evidence of his own in any court. As the Supreme Court explained in Boumediene, the administration’s argument was based on the unique status of Guantanamo, over which the U.S. holds complete control under a perpetual “lease” from Cuba:

Guantanamo Bay is not formally part of the United States. And under the terms of the [1903] lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” . . .

The United States has maintained complete and uninterrupted control of the bay for over 100 years. . . . And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

The Court also recognized that prior law did not establish how a territory with such a status should be treated. Thus, it concluded that the historical examples of hybrid territories both sides presented to the Court failed to answer to the question before the Court. Interestingly, the Court compared the absence of convincing historical precedent to the situation it faced in 1954 in Brown v. Board of Education:

[G]iven the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483, 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment , discussed in the parties’ briefs and uncovered through the Court’s own investigation, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive”) . . . .

So what did the Court do? It decided that although “ultimate sovereignty” over Guantánamo continues to reside in Cuba, the United States exercises “complete jurisdiction and control” that is “absolute” and “indefinite.” The U.S. as a a matter of fact exercises all the control over Guantanamo it would if it legally owned it rather than held it under a perpetual lease. In addition, it is impossible to consider Guantanamo Cuba’s territory in connection with the U.S. detention center, even though technically Cuba is the territory’s “sovereign,” because Cuban law does not apply on Guantánamo: “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station.”

In short, if U.S. law does not apply to the prisoners held at Guantanamo, no law does. That is exactly what the Bush administration had wanted, and it is exactly what the Supreme Court rejected in Boumediene.

The 100 Most Creative Moments in U.S. Law?

From the Law Librarian Blog:

Robert F. Blomquist’s (Professor of Law/Swygert Research Fellow, Valparaiso) Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law [download from SSRN or ABA Journal] is a very interesting article as long as you do not take Blomquist’s act of ranking creative moments in American law too seriously. If you did take the ranking seriously you would have to note his bias for environmental law. You would have to question why Rachel Carson’s Silent Spring (1962) and Charles Reich’s The Greening of America (1972) ranks higher than Richard Posner’s Economic Analysis of Law (1973) and why Berle and Means’ The Modern Corporation and Private Property (1932) fails to appear in the ranking while Al Gore’s Earth in the Balance (1992) and An Inconvenient Truth (2006) do appear in the Top 100.

. . . what makes Blomquist’s article interesting is the project itself, the attempt to articulate America’s most creative legal moments to “energize and clarify our synoptic thinking about the nature of legal creativity.” In it he identifies, court decisions, executive actions, specific statutes, legislative programs, landmark articles, books, and events in legal education. He offers brief justifications for his selections and their placement in his ranking but I think the use of a numerical ranking system as an organizing device is too artificial and constrains his commentary; a matrix or web of law with major and minor nodes for the layering of law’s creative moments might be better way to perform this sort of intellectual archeology.