THE 9/11 TERROR CASES: CONSTITUTIONAL CHALLENGES IN THE WAR AGAINST AL QAEDA
Author: Allan A. Ryan
Publisher: Lawrence, KS: University Press of Kansas, 2015. 240p.
Reviewer: Rebecca Kunkel | January 2017
More than 14 years have elapsed since the first prisoners captured in the Bush administration’s “war on terror” were transferred to the military prison in Guantanamo Bay. In the interim, the facility has received widespread criticism for human rights abuses, legal challenges to its system of military commissions, and complaints regarding the mounting fiscal costs of the prison’s maintenance. Although President Obama’s campaign platform promised speedy closure of the prison, as his second term in office ends, Guantanamo continues to house 80 prisoners, many of whom have languished for a decade or more without being charged with any crime and with only perfunctory review of their alleged status as enemy combatants.
For anyone who is interested in understanding how Guantanamo came to be so firmly entrenched, Allan A. Ryan’s The 9/11 Terror Cases: Constitutional Challenges in the War against Al Qaeda will serve as a useful point of departure. The book focuses primarily on the Supreme Court’s decisions in the litigation arising from the government’s detention of prisoners in the war on terror. Following a description of the events that precipitated the creation of the prison at Guantanamo, the next three chapters delve into the first cases to make it to the Supreme Court: Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla. Chapters 5 and 6 discuss the Hamdan v. Rumsfeld and Boumediene v. Bush cases, respectively. In the final chapters, Ryan summarizes legal developments during the Obama administration and offers his assessment of the Bush and Obama administrations’ policies on the Guantanamo prisoners and the law as it developed over the course of the history he surveys.
Consistent with the aims of the University Press of Kansas’ Landmark Law Cases and American Society Series, the presentation is both concise and accessible to a general audience, breaking down complex legal arguments that draw on international, military, and constitutional law concepts. In addition to providing lucid explanations of the meaning and significance of the Court’s opinions, Ryan discusses each opinion within the larger story of the case, from proceedings in the lower courts, to the actual fate of the prisoners following disposition in the Supreme Court, to the response of other systemic actors to the Court’s decisions. This context proves a necessary component to making sense out of the ostensible paradox of why conditions at Guantanamo persist. With the exception of Padilla, whose case was thrown out based on a jurisdictional defect, prisoners won in nearly all of the cases before the Supreme Court. In the process, the Court decided several important questions in favor of the prisoners: that United States courts have jurisdiction to review the detention of non-citizens held by the US government in foreign country (Rasul), that Guantanamo’s system of military commissions as originally established violated the Uniform Code of Military Justice and the Geneva Conventions (Hamdan), and that the Guantanamo prisoners hold a constitutional right to seek habeas corpus (Boumediene). While it initially seemed that victories on these questions would result in the undoing of Bush-era policies at Guantanamo, the indefinite detention of a significant number of prisoners continues.
A full exploration of the political factors involved in the creation of this state of affairs would have necessarily entailed a much longer volume. However, a substantial part of the explanation—including Congress’ efforts to head off the trials of Guantanamo prisoners in civilian courts and the Supreme Court’s refusal to review doctrine developed in the DC Circuit which gutted the right to habeas review established by Boumediene—is apparent from the book’s presentation of the legal history. The clarity with which this history is conveyed in Ryan’s descriptive account renders his concluding normative assessment of the cases’ enduring significance somewhat jarring. Ryan sees the cumulative effect of these cases as resetting an appropriate balance of power between the executive, legislative, and judicial branches of government following an unprecedented expansion of executive power by the Bush administration. But another, more troubling, interpretation remains plausible—that the Supreme Court managed to symbolically shoot down only the most grandiose and absurd theories of Bush’s legal advisors while allowing the substance of his administration’s power grab to remain largely intact.
Rebecca Kunkel, Librarian, Rutgers Law Library
