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.

Novelty alone is not creativity, whether in the legal strategy for the war on terror or the invention of the Segway

One measure of creativity must be its effectiveness rather than its mere novelty. On that score, as Jane Mayer noted back in the July 3, 2006 issue of the New Yorker, the Bush Administration’s legal strategy for the war on terror might have been radical, even unprecedented, but can hardly be called creative:

[T]he Administration’s legal strategy for the war on terror[,] [k]nown as the New Paradigm, . . . rests on a reading of the Constitution that few legal scholars share—namely, that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside.

. . . The overarching intent of the New Paradigm, which was put in place after the attacks of September 11th, was to allow the Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their exacting standards of evidence and emphasis on protecting defendants’ rights, were deemed too cumbersome. (emphasis added)

Over two years since Mayer’s article, nearly seven years since September 11, 2001, what have we got? As the Christian Science Monitor puts it:

One conviction, of Salim Ahmed Hamdan, the personal driver of Al Qaeda leader Osama bin Laden. After a two-week-long trial and three days of deliberations, the military court in Guantanamo Bay, Cuba, convicted Mr. Hamdan of providing material support for terrorism by driving Mr. bin Laden around Afghanistan. In spite of the conviction, legal debate regarding the trial rages on.

I’m not merely ranting about a war in Iraq I’ve opposed since its inception, or of the fraudulent legal analysis that produced this Administration’s conclusions regarding what constitutes torture. I’m pointing out that results count, and what is more telling than an utter and complete failure to meet the very purpose of a radical departure from existing norms? It doesn’t take a cognitive psychologist to recognize the differences between mere novelty and genuine creativity, but it’s plain Arthur J. Cropley does:

The cognitive approach to creativity emphasizes the processes involved in producing effective novelty, as well as the control mechanisms that regulate novelty production, and the structures that result. Merely novel structures display surprisingness and incongruity, to be sure, but they must also be meaningful and practicable to be effective.

Do you remember the Segway? (That’s Dick Cheney, of all people, riding one up there in the upper right of this post.) As Jeff Foust wrote two years ago in The Space Review, in 2001 (before 9/11, of course),

the question being pondered by millions was simple: “what is IT?” “IT” was the codename for the invention that had reportedly been developed by famed inventor Dean Kamen. Details about IT (also known as “Ginger”, its internal codename) were scant . . . .

What was known was that IT was some kind of transportation technology. The Inside report . . . said that the device had wowed over luminaries like venture capitalist John Doerr, who invested in the project while claiming it was as revolutionary as the Internet; Steve Jobs, the Apple co-founder who reportedly claimed that “cities would be architected” around the device; and Amazon.com founder Jeff Bezos, whose trademark laugh could be heard echoing through the halls of Kamen’s New Hampshire headquarters as he tried out the device during a June 2000 visit. The potential upside of this device was seemingly limitless, providing a sharp and hopeful contrast to the dot.com world, which was crashing to Earth at the same time. The speculation spawned a web site, theITquestion.com, where visitors traded the latest rumors on just what IT might be.

Kamen officially unveiled the Segway on the ABC TV show “Good Morning America” in December 2001. The response was… underwhelming, in many quarters. “I’m tempted to say, ‘That’s it?’” co-host Diane Sawyer blurted out when the sheet covering the Segway was pulled away. “But that can’t be it.”

But that was it. From a technological standpoint Segway was a revolutionary invention: a computer-controlled, self-balancing “human transporter” that was highly maneuverable yet easy and safe to use. However, to the public, whose expectations had bloomed in hothouse of hype fueled by the media and the Internet over the last year, the Segway seemed more like an odd-looking scooter than the device that was as revolutionary as the Internet and would force people to rearchitect cities. . . .

It’s little surprise, then, that Segways failed to sell at anywhere near the levels its backers hoped. When the company issued a recall notice in September 2003 to correct a software problem, it said only 6,000 devices had been manufactured to date. Kemper, in his book Reinventing the Wheel (the softcover version of the book about the development of the Segway that was originally published under the title Code Name Ginger), reported that as of summer 2004—the last date sales figures had been released—less than 10,000 Segways had been sold. (Segway’s media relations office failed to respond to a request last week for updated sales figures.) That’s a far cry from the pre-release belief, voiced by Doerr, that Segway would make its first billion dollars faster than any other company in history. No one seems to be in a hurry these days to redesign cities around the Segway; after all, when was the last time you saw a Segway rolling down the sidewalk?