[Update: 12/9, 4:30 p.m.: I missed this in my first run through the SSCI Torture Report, but on page 151, the report explains that “[in early 2005], the U.S. solicitor general . . . expressed concern that if CIA detainees were transferred back to Guantanamo Bay, Cuba, they might be entitled to file a habeas petition and have access to an attorney.” In my initial post below, I raised the concern that the report appeared to insinuate, without expressly stating, that the Solicitor General (at the time, Ted Olson) was directly involved in recommending a way for the CIA to avoid the habeas jurisdiction of the federal courts. In fact, this later passage in the report appears to make clear that Olson’s successor (Paul Clement, who was the principal deputy at the time of the pre-Rasul deliberations and the acting SG by early 2005) continued to counsel the CIA on how to evade federal jurisdiction even after Rasul was decided.]


In his 2010 opinion for a unanimous three-judge panel in al Maqaleh v. Gates, in which the D.C. Circuit held that non-citizens detained by the United States in Afghanistan were not protected by the Suspension Clause, and therefore were not entitled to habeas relief after and in light of the Supreme Court’s 2008 decision in Boumediene, then-Chief Judge Sentelle scoffed at the suggestion that the government might be choosing where to hold detainees to avoid habeas jurisdiction:

the notion that the United States deliberately confined the detainees in the theater of war rather than at, for example, Guantanamo, is not only unsupported by the evidence, it is not supported by reason. To have made such a deliberate decision to “turn off the Constitution” would have required the military commanders or other Executive officials making the situs determination to anticipate the complex litigation history set forth above and predict the Boumediene decision long before it came down.

Of the many, many tidbits in the SSCI Torture Report that are so interesting, one that particularly struck me is this passage from pages 140-41:

In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case, Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantanamo Bay. . . .
After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantanamo Bay pending the Supreme Court’s resolution of the case. . . . [B]y April 2004, all five CIA detainees were transferred from Guantanamo Bay to other CIA detention facilities.

Later, in footnote 2467 (on page 440), the Report notes that “Because the Committee was not informed of the CIA detention site at Guantanamo Bay, Cuba, no member of the Committee was aware that the U.S. Supreme Court decision to grant certiorari in the case of Rasul v. Bush, . . . resulted in the transfer of CIA detainees from the CIA detention facility at Guantanamo Bay to other CIA detention facilities.”

There are three threads to this discussion that I find striking: 

First, if nothing else, this passage in the report makes clear what many long suspected–that, in fact, the government has at various points since September 11 transferred detainees for the purpose of evading the jurisdiction of the federal courts (which, if the detainees had filed habeas petitions while at Guantanamo, wouldn’t have been successful). At bottom, then, this discussion should hopefully illuminate just how hollow Chief Judge Sentelle’s skepticism in Maqaleh should ring.

Second, on the merits, this passage is fairly conclusive proof of another point that has long been assumed–but for which hard evidence has been hard to come by: That the Supreme Court has directly affected both the substance and implementation of U.S. counterterrorism policy simply by deciding to hear certain post-September 11 terrorism cases, to say nothing of what it’s said when resolving those cases on the merits. I wrote about this phenomenon a bit in my 2011 piece on “The Passive-Aggressive Virtues,” and the report provides yet further evidence of how, intentionally or not, the Court has actually projected quite a long shadow onto post-September 11 counterterrorism policy.

Third, and related, the report notes that it was the Department of Justice (with the consultation of the Solicitor General) that recommended the transfer of the detainees in order to avoid the potential consequences of losing in Rasul. Although the Office of the Solicitor General is (rightly) involved in discussions of government policy and how it affects litigating positions before the Supreme Court, am I the only one troubled by the insinuation that the SG might have played a role in supporting the transfer–which, again, could only have the purpose of defeating the jurisdiction that would otherwise attach if and when the government lost in Rasul?

Fascinating stuff…