Who Knows: LJST Professor Nasser Hussain on Guantanamo Bay and Detainee Rights

June 15, 2009

On his second day in office, President Obama signed an executive order committing to close the U.S. military detention facility at Guantanamo Bay, Cuba, by January 2010 and to review the legal status of the “enemy combatants” detained there. It was a development closely followed by Amherst’s Nasser Hussain, associate professor of law, jurisprudence and social thought, who has spent years writing about the writ of habeas corpus (the judicial mandate requiring that prisoners be brought before the court to determine whether the government has the right to continue detaining them) and the use of emergency powers. He spoke with Public Affairs’ Caroline Hanna recently about his work and the new administration’s policy on detainee treatment.

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CH: What sparked your academic interest in the Guantanamo Bay situation?

NH: I’m a historian by training; I have a Ph.D. in colonial history. You obviously cannot study colonial history without being confronted with questions of legitimacy, force, etc. That’s how I got into legal theory and addressing the questions of regulating and legitimating the use of force. I was particularly interested in the use of emergency powers.

CH: How can your earlier research be applied to Guantanamo?

NH: One of the chapters of my book The Jurisprudence of Emergency: Colonialism and the Rule of Law is on the history of habeas corpus in the British Empire and the debate over whether habeas corpus extends outside the immediate vicinity of Britain, to, for example, the possessions in India. As I was finishing the book—it was in review already—9/11 happened. Then, when the book was published in 2003, lawyers representing Guantanamo Bay detainees got in touch with me to say that they had come across my book, and that they were looking for cases that were about whether habeas corpus extends outside the immediate constitutional borders of, in that case, the United Kingdom.

The Bush administration’s argument at that point was that because Guantanamo de jure belongs to Cuba, no rights extend to the enemy combatants detained there. These lawyers wanted to find some cases where, for example, a judge would say, “No, what really matters is actual control, not some formal title.” Sure enough, there were cases I had found in the archives for my book where English judges had said, “No, the king can’t do that, he can’t just go to India and have complete control and none of the constitutional restraints.” It was one of the more interesting twists of my intellectual life: What was probably the most arcane, academic chapter of my book—the technical question of the extraterritorial application of habeas corpus—had suddenly became a daily debate on the news. It was surreal. 

So I helped write an amicus curiae brief for the 2004 Supreme Court case of Rasul v. Bush. The brief pointed out that, in fact, there has been a tradition of using habeas corpus even in territories where the question of sovereignty was somewhat muddled but where there was an effective ruling presence. De facto sovereignty matters. The Supreme Court, through a series of moves leading up to last year’s decision in Boumediene v. Bush, basically upheld that.

CH: What’s your feeling on the Guantanamo detainees today? Have they been legally mistreated? 

NH: I think the original position that the Bush administration was maintaining was untenable. Their policy was that these are people outside of both international and domestic law, this category of “enemy combatant.”

There really are two options: you can either try someone domestically as a criminal or you can hold them as a prisoner of war. Then there’s this third ambiguous thing called “enemy combatant.” I think the Supreme Court pushed back in the right ways. In Hamdi v. Rumsfeld, they said you have to give detainees some sort of a hearing; in Boumediene v. Bush, they said detainees who are not citizens still have a right to habeas corpus.

CH: What do you think of the Obama administration’s policy changes? 

NH: I think the immediate step of closing down Guantanamo was a very important symbolic one. I think some of the criticisms Obama has been getting have been unfair. We should remind ourselves that John McCain and Colin Powell were also committed to shutting down Guantanamo.

There has been some debate over Obama’s timetable. I think we do need a timetable, otherwise these things go on and on. There’s a great line in Boumediene by Justice Souter, and I’m paraphrasing here: our critics are saying the Supreme Court, by intervening in these matters, is guilty of judicial haste, but we should remember it’s been six years since this litigation started and we’re still debating whether to give this person a hearing.

CH: How different is Obama’s policy from Bush’s?

NH: I think the jury is still out on that. Initially there was a lot of buzz about the creation of some sort of “terrorists court” or national security court. Now it seems the administration is going to continue with military commissions but with more protections for the accused, such as excluding hearsay or coerced evidence. How much of a change will this system really be from the previous administration? We just don’t know. It’s just too early to say.

CH: What challenges will Obama face as a result of closing Guantanamo?

NH: Going forward, I do think the most difficult thing for President Obama will be the question of so-called “hard cases”—how you detain people you do not want to release for security purposes but against whom you do not have enough evidence to try. Essentially the question of preventative detention—that’s going to be the hardest. I’ve written on the way that they have dealt with preventative detention in the U.K.; they’ve tried to come up with a midway scheme called control orders, which involve electronic surveillance, curfews and other elements. You’re not putting people in jail but you’re keeping them under some kind of surveillance because of a reasonable suspicion. 

CH: This month, the first detainee, Ahmed Ghailani, was released from Guantanamo to be tried domestically. Is that a signal of change? 

NH:  Well it is certainly a showing of the commitment of the administration to try cases when clearly possible in civilian courts. That said, the Ghailani case is a pretty straightforward one. By all accounts there is ample evidence of his involvement in the embassy bombings of the 1990s. As I said earlier, the real test will be with the more murky cases. But this case may be a good reminder that we have in the past successfully and fairly tried terrorists in civilian courts.