Secrecy has pervaded post-September 11 counter-terrorism detentions. The administration has sought to conceal information about the individuals it detains, including their names, and to avoid judicial review of their detentions. It has also resisted allowing attorneys access to detainees and, even when access has been granted, the administration has sought to significantly restrict that access, including, most recently, by preventing detainees from telling their lawyers they had been tortured.1 Similarly, the methods of interrogation have been concealed,2 as have the administration's position regarding and legal analysis of permitted techniques.3 The very existence of CIA-operated offshore prisons has been shrouded in secrecy and only revealed through government leaks.4 Moreover, subsequent investigations have targeted those who made public information about secret detentions and coercive interrogations, and not the underlying conduct of government officials who ordered or carried out those actions.5 In addition, the government has sought to shield itself from liability for allegedly rendering an individual to a foreign government for torture and other abuse by invoking the Page 128 state secrets privilege, claiming that allowing the suit to proceed would jeopardize national security.6
This Article examines the role of secrecy7 in detentions at the United States naval base at Guantanamo Bay, Cuba, and the constraints upon secret detentions by habeas corpus. Paradoxically, Guantanamo provides the best window into the constellation of issues surrounding secrecy and related issues in post-September 11 detentions because more is known about it than any other post-September 11 detention site. Since the United States started bringing prisoners to Guantanamo in January 2002, the base has been transformed, over the continued opposition of the United States government, from a state of near-total secrecy-a "legal black hole"8-to a quasi-regulated prison that is subject to significant, if still limited, oversight and legal process. This Article describes how habeas corpus has helped subject detentions at Guantanamo to legal process and limited the secrecy that was so prevalent before, even though elements of the previous system remain in place. It also examines why habeas corpus guarantees a meaningful inquiry into the factual and legal basis for the detentions, and how habeas review affects related issues such as access to counsel, detainee transfers for foreign custodians, and the availability of a meaningful remedy where detention is unlawful.
Part I examines the various ways secrecy has contributed to the establishment of a new detention paradigm at Guantanamo, a system designed to hold individuals indefinitely outside judicial review, public scrutiny, and established checks on unlawful detention and coercive interrogations.
Part II provides a brief overview of the habeas corpus litigation challenging the Guantanamo detentions. In particular, it examines the Supreme Court's decision in Rasul v. Bush,9 explaining how Rasul both undermined the administration's asserted basis for these detentions and prompted their threatened institutionalization through the creation of ad hoc status review tribunals, which provide the illusion of procedural safeguards, but actually insulate detentions from meaningful scrutiny. Part II also examines the significance of the Detainee Treatment Act of Page 129 2005, which, in purporting to strip federal courts of jurisdiction over habeas petitions, threatens to restore important elements of the pre- Rasul system of detentions at Guantanamo, and of the Military Commissions Act of 2006, which seeks to impose the same limits. In addition, Part II addresses the role of secrecy in the President's military commissions intended to try those detained for war crimes, and the Supreme Court's recent decision in Hamdan v. Rumsfeld10 invalidating those commissions.
Part III argues that habeas corpus povides important limits on detentions at Guantanamo and the Executive Branch's ability to confine individuals in secret without external oversight. Specifically, it looks at how habeas corpus impacts access to counsel, the right to challenge the factual as well as legal basis for a prisoner's detention, judicial review of the transfer of detainees to foreign custody, and the availability of a remedy where the detention is deemed unlawful. In each instance, Part III explains how the model of review provided by the Detainee Treatment Act and Military Commissions Act would erode safeguards against secret detentions provided by habeas corpus and suggests the need to ensure that there continues to be habeas jurisdiction.
When the United States first brought prisoners to Guantanamo in early 2002, secrecy pervaded virtually every aspect of the detentions there. The administration, for example, refused to release the names of any detainees until ordered to do so by a court in early 2006, in a suit under the Freedom of Information Act ("FOIA").11 While high-level officials labeled the detainees "the worst of the worst,"12 the administration refused to publicize the basis for the detentions until it was forced to respond to habeas corpus petitions demanding that it defend the detentions in court. Even then, much information remained secret, and the transcript that was disclosed to detainees and the public was from a proceeding that lacked basic elements of due process.13
The administration also sought to conceal the interrogation techniques used at Guantanamo and to prevent any interference by attorneys or courts with those interrogations. While the President said all detainees would be treated "humanely," he also maintained that the United States was not bound by any provisions of domestic or international law, including the Geneva Conventions.14 The President further determined that members of the Taliban who had fought against the United States were not entitled to prisoner of war status because they were unlawful combatants. In addition, he determined that the minimum standards of treatment set forth in Common Article 3 of the Geneva Conventions did not apply to Guantanamo detainees because they were unlawful combatants-a position the Supreme Court rejected in Hamdan v. Rumsfeld.15 By denying prisoners at Guantanamo the protections of international humanitarian law, the administration created a legal black hole in which secrecy in detentions and interrogations could take root and spread without limits.
The implications of creating a lawless enclave at Guantanamo became clearer in June 2004, just over a month after the revelations of torture and sexual abuse at Abu Ghraib, when several memoranda penned by the Justice Department's Office of Legal Counsel were publicly leaked.16 As Joseph Margulies explained, these memos provided "a blueprint for the creation of a prison beyond the law."17 One memo prepared by John Yoo and Patrick Philbin, then both high-level attorneys in the Justice Department, suggested that habeas corpus would not extend to prisoners at Guantanamo because they were aliens held outside sovereign territory; the Supreme Court later rejected precisely this position in Rasul.18 The existence of this memo indicates that Page 131 Guantanamo was selected as a prison site deliberately to avoid any judicial intervention into the administration's detention and interrogation operations.19 Another Justice Department memo provided an exceedingly narrow definition of torture, excluding the infliction of physical pain short of pain associated with organ failure or death, and further argued that Executive Branch officials were not subject to the federal criminal statute prohibiting torture20 for conduct committed in the exercise of the President's authority as Commander-in-Chief.21 A subsequent memo written for the Department of Defense by a Judge Advocate General legal advisor at Guantanamo, and also leaked to the press, approved a list of coercive interrogation techniques designed to break a high-level al Qaeda suspect named Mohammed al-Qahtani.
A lynchpin of secrecy at Guantanamo was the administration's refusal to defend its detention decisions in court. The administration initially maintained Page 132 that no federal court could entertain a legal challenge on behalf of a Guantanamo detainee, a position that two lower courts upheld.26 While the Supreme Court rejected that position in Rasul v. Bush,27 the administration subsequently sought to minimize the scope of any review and maintain secrecy over Guantanamo detentions to the maximum extent possible, first through the creation of ad hoc status tribunals that sought to avert district court habeas review of the basis for the detentions, and, most recently, through the passage of court-strip- ping legislation.
Secrecy also played a significant role in the proposed system of military commissions established by the...