This past weekend I attended a conference at Yale Law School, and I was chatting with a former Justice Stevens clerk. I commented, “wow, he’s been awfully quiet of late.” She assured me that JPS is doing fine. For a lark, I checked the Court’s “speeches” page, and noticed that JPS hadn’t given a talk since March 24, 2015. I must have some sort of Stevens-spider-sense. His silence was broken on May 4 for a talk to the Lawyers for Civil Justice Membership Meeting. Among other topics, Justice Stevens criticizes Justice Kennedy’s majority decision in Iqbal, and insists that detainees from Guantanamo should be entitled to reparations like the victims of Japanese internment camps. (Steve Vladeck has more here).
JPS also decides to weigh in a controversial aspect of closing Guantanamo–the National Defense Authorization Act, which imposes restrictions on the transfer of detainees from the prison. He writes:
One of the reasons that they remain in custody is that Congress has enacted a flat ban on the transfer of any Guantanamo detainee to the United States for any reason whatsoever. Another reason is that Congress has imposed restrictions on the President’s ability to transfer detainees to foreign countries. Before such a transfer can occur, the Secretary of Defense must send congressional committees a letter thirty days beforehand explaining that the receiving country has taken or will take steps that “substantially mitigate the risk” that the individual will engage in hostilities against the United States. The Secretary must further explain why the transfer is in the national security interest of the United States. These onerous provisions have hindered the President’s ability to close Guantanamo, make no sense, and have no precedent in our history. Congress’s actions are even more irrational than the detention of Japanese American citizens during World War II.
There you have it. Congress’s imposition of a 30 day waiting period before a detainee is released is “more irrational” than President Roosevelt’s decision to exclude and round over 100,000 Japanese-Americans, and lock them in internment camps. Do I need to remind you that unlike Roosevelt’s unilateral executive action, this restriction comes from a bill that the President signed, along with (gasp) a signing statement?
In any event, it doesn’t really matter, as the President flatly ignored this law when he released the deserter Bergdahl in exchange for five, high-value detainees without providing any advance notice. Justice Stevens had no comments about that act.