I owe an apology to Defense Secretary Robert Gates and Secretary of State Condoleezza Rice for the inaccuracies and the strident tone of last night’s post regarding their reported support for the closure of Guantanamo Bay’s detention facility for alien enemy combatants. I leapt to a conclusion based on quick and shoddy research. I still think there are very good reasons not to close Gitmo, but I was off-base in my legal argument and in the inference drawn from it that they were acting rashly. For that, I am truly sorry. I should have known better, particularly since I personally know and admire some of the very solid people giving them legal advice.

The bottom line is that, thanks to the Military Commissions Act of 2006 (MCA), there is every reason to be confident that the legal rights of the detainees would not be expanded by the happenstance of their being held inside, rather than outside, the United States (which is to say, inside rather than outside the territorial jurisdiction of the federal courts).

So why did I screw this up and think otherwise? Well, as I suggested last night, law enacted by Congress with respect to the detainees does expressly assume they will be held at Gitmo. That, however, is true only of the Detainee Treatment Act of 2005, not the MCA. The MCA basically reaffirmed the DTA in several respects (after the Supreme Court’s 2006 Hamdan decision). The shoddy mistake I made was in assuming, rather than taking the time to confirm, that the DTA definition of unlawful alien enemy combatants was carried over into the MCA. In fact, the MCA makes an important, beneficial change.

To wit, the DTA had referred expressly to an “application for a writ of habeas corpus [or any other detention-based action against the U.S.] filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” (Emphasis added.) The MCA, however, dropped this limiting reference to Gitmo. Instead, it emphatically amended the federal habeas corpus statute (28 USC 2241) so that it now says the following:

Except as provided for in this subsection, and notwithstanding any other law, no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this Act, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant, relating to any aspect of the alien’s detention, transfer, treatment, or conditions of confinement.

(Emphasis added.) As the subsection (the new Section 2241(e)) goes on to prescribe, judicial review is limited, as it was in the DTA, to the U.S. Court of Appeals for the D.C. Circuit, which can only hear challenges to the military’s Combatant Status Review Tribunals and military commission trials after those matters have gone through the military justice system’s process.

Consequently, from the standpoint of the jurisdiction of the United States courts, it should not matter whether the combatants are held in Cuba, the continental United States, or anyplace else. If they are detained based on a determination by the Defense Department that they are unlawful enemy combatants, they get military proceedings and then limited civilian judicial review in the D.C. Circuit. They do not get to ask the federal district courts to freelance. Secretary Gates and Secretary Rice thus have every reason to be confident that bringing the combatants into the United States would not open a Pandora’s Box of litigation. Obviously, the combatants and their lawyers would try to get the courts to overturn the MCA, but they shouldn’t prevail.

Finally, the issue currently percolating up to the Supreme Court, based on the D.C. Circuit’s recent 2-1 decision in the Boumediene case, is whether the combatants have habeas corpus rights under the Constitution, as opposed to under the federal habeas statute. I do worry that closing Gitmo and bringing the combatants into the United States would strengthen the combatants’ claim to constitutional rights. (The courts have held that even illegal aliens have constitutional rights in some contexts — being physically present in the United States can make a difference in a court’s assessment of an alien’s fundamental rights under our law.) So I believe it would be tactically unwise to bring the combatants into the United States before the Supreme Court weighs in on their constitutional status. Certainly, there would have been good reason for the Defense and State Departments to conclude that it shouldn’t make a legal difference to the Supreme Court; but that hardly means it wouldn’t make a difference.

In any event, I deeply regret the legal error and the tone of the post. One can certainly disagree with the reported stance of Secretary Gates and Secretary Rice; but that stance is a respectable one, and it was wrong for me to have suggested otherwise.