Bench Memos

Law & the Courts

Justice Stevens, ‘Even More Irrational’ Than Ever?

[Cross-posted on The Corner]

In a short speech on Monday, quasi-retired Justice John Paul Stevens declared that “Congress’s actions” in imposing restrictions on transfers of Guantanamo detainees “are even more irrational than the detention of Japanese American citizens during World War II.” Invoking reparations for Japanese-Americans as a supposed precedent, Stevens further prophesies that “in time our leaders will acknowledge that some or all of [the] 57 detainees [whom the executive branch has approved for transfer] are entitled to some sort of reparation.”

Oh, really? By Stevens’s own account, the Japanese Americans who received reparations for their internment were American citizens or lawful permanent residents. Further, as Stevens mentions only in passing, they were “loyal” to the United States. Although their internment was deemed lawful at the time, the 1988 law awarding reparations expressed the widespread retroactive consensus that the internments inflicted “fundamental violations of the basic civil liberties and constitutional rights of these individuals of Japanese ancestry.”

By contrast, the 57 detainees who are the object of Stevens’s solicitude are all non-resident aliens who have been detained as enemy combatants. As Stevens notes, “the government”—that is, the same executive branch that Stevens wants Congress to defer to on transfers—“continues to claim legal authority to detain them as unprivileged enemy belligerents.” Under long-settled principles of international law, they may be lawfully detained for the duration of our country’s conflict with al Qaeda.

Stevens, it’s worth emphasizing, doesn’t base his case for reparations for some or all of the 57 Guantanamo detainees on any claim that they were not in fact properly classed as enemy combatants. Rather, he bases it entirely on the executive-branch determination that they no longer “pose[] a significant security threat to the United States.” That, to be sure, is a relevant factor in the government’s discretionary decision whether to transfer the detainees for release. But it has no bearing on the legality of their continued detention.

Although he titles his speech “Reflections About the Sovereign’s Duty to Compensate Victims Harmed by Constitutional Violations” (emphasis added), Stevens doesn’t even try to muster an argument that there is anything unconstitutional (or otherwise illegal) about the continued detention of the 57 enemy combatants.

I’ll leave it to Andy McCarthy and others to address, if they care to, Stevens’s claim that it is “irrational” for Congress to have imposed “onerous” restrictions on the transfer of Guantanamo detainees. (Somehow I suspect that the agencies that have determined that the 57 detainees don’t pose a significant security threat to the United States have been under intense pressure from the White House to reach that conclusion.) But what strikes me as clearly irrational is Stevens’s belief that our country should award reparations to enemy combatants for their lawful detention—and that reparations to loyal Japanese-Americans provide a meaningful precedent for such an award.

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