Oct. 12, 2009
By Stephen P. Schmidt

Linda Greenhouse

Greenhouse served as the newspaper's Supreme Court correspondent in Washington, D.C., from 1978 to 2008. She said that when writing an article, she tried to put herself in the shoes of a Times reader and ask what he or she would "have to know to be able to come to their own judgment of what just happened at the [Supreme] Court. I would imagine myself speaking to that person, to kind of empower that person with knowledge to be an informed citizen. That was the goal."

Greenhouse visited the School of Law on Oct. 8 to give a presentation on "The Lessons of Guantanamo Bay," which was sponsored by the firm of Silver Golub & Teitell in Stamford, Conn.

"To me it's just a treat to see somebody who is so capable of taking the most intricate, difficult issues and present them in away that does not oversimplify them, but that makes them accessible to a really broad range of people," said School of Law Dean Brad Saxton.

Her topic, though, has been as intricate and difficult as they come since the United States government began holding detainees at the Cuban facility following the terrorist attacks on Sept. 11, 2001.

Greenhouse told the story of Fouad Mahoud Hasan al Rabia. He is a Kuwaiti detainee who, after being held at Guantanamo Bay for more than seven years, was recently granted habeas corpus in September 2009 by a U.S. federal district court judge.

"The granting of habeas corpus was an ambiguous victory for Mr. al Rabia, as is the entire Guantanamo story is confused with ambiguity for all of us," said Greenhouse, a Pulitzer Prize recipient who is currently serving as the Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School.

"Just about a year ago I gave a lecture at Yale that I called the 'The Mystery of Guantanamo Bay' and the mystery is this: How could it be that in spite the [George W.] Bush Administration having lost three rounds of cases to the Supreme Court... not a single Guantanamo detainee had ever been released by order of the federal court? That was the mystery."

The mystery still remains. "So eight years in, what are we to make of our Guantanamo experience? What lessons does it teach us? I have struggled with this question because there is no single answer," she said. "It's a very muddy picture."

Greenhouse went over the most significant Supreme Court cases that dot the time line of Guantanamo legal matters, including the 2004 case of Rasul v. Bush, which established that the U.S. court system had the authority to determine whether foreign nationals detained in Guantanamo Bay were wrongfully imprisoned, and 2006 case Hamdan v. Rumsfeld, in which the court rejected the Bush administration's unilaterally revised military commission plan.

"Looking back, I think my enthusiasm for those early cases was in fact premature. The justices and judges did what judges do, but they did it tentatively... It took exasperation, not courage, for district judges in late 2008 to early 2009 to order the release of detainees against whom the government could not muster enough evidence even to demonstrate by mere preponderance status," Greenhouse said.

"The Guantanamo saga is as much about the United States and its commitment to the rule of law then it is about the detainees caught in the web of policy."

By the time the Supreme Court handed down its ruling in Boumediene v. Bush in 2008, Greenhouse's optimism that any major changes in policy would occur had been dramatically tempered. Although the decision declared that the Military Commissions Act of 2006 was unconstitutional, Greenhouse said the ruling still "left a large gap."

"At the end of the day, what rights can the detainees vindicate through their habeas corpus petitions? The court had not answered that question... We still don't know what remedies are available to those detainees who actually succeed in obtaining habeas [corpus].

"So if we've learned anything over these years, I think it's while the courts perhaps on a good day can guide us, they can't save us. We have to save ourselves."

Greenhouse noted that the recent actions of Congress have only compounded the situation. Two days before her speech, the Senate voted in a landslide to forbid the use of federal funds to bring detainees to the U.S. for any reason. Complications such as this will prevent President Barack Obama from keeping good on his promise to close the Guantanamo Bay facility by January 2010, Greenhouse said.

"He's in tough spot," Greenhouse said of Obama. "He walked into a terrible mess."

Brian Gregorio, a first-year law student from Naugatuck, Conn., agreed with Greenhouse's overall sentiments.

"I think we're still learning the lessons of Guantanamo, of the war on terror, simply because realistically there's no easy answer to them. They're complex problems and whether or not the steps were right or wrong, it's a situation we have right in front of us right now," Gregorio said. "We owe not only to ourselves but to everybody else to take the right steps, to try to do the right thing."