Retired Justice Stevens says some Guantánamo captives may deserve reparations

In this photo taken June 15, 2006, Associate Justice John Paul Stevens, center, stands as he and other justices leave a memorial for the late Chief Justice William H. Rehnquist, at the Supreme Court in Washington, D.C.
In this photo taken June 15, 2006, Associate Justice John Paul Stevens, center, stands as he and other justices leave a memorial for the late Chief Justice William H. Rehnquist, at the Supreme Court in Washington, D.C. ASSOCIATED PRESS

Retired U.S. Supreme Court Justice John Paul Stevens shattered the taboo on talking about reparations for Guantánamo captives this week in a speech that said some of the nearly 800 men and boys held at the Pentagon’s prison camps in Cuba may be entitled to compensation, like Japanese Americans who were interned during World War II.

“I by no means suggest that every Guantánamo detainee, such as those who have been convicted by a military commission, is entitled to compensation,” he said Monday in prepared remarks for a meeting of the nonprofit Lawyers for Civil Justice group in Washington, D.C. “But detainees who have been deemed not to be a security threat to the United States and have thereafter remained in custody for years are differently situated.”

With those remarks, the 95-year-old justice who was appointed by Gerald Ford and retired in 2010 stepped into an ongoing tug-of-war between the White House and Congress about what to do with the last 122 captives at Guantánamo — 57 of them approved for release, with host country security assurances.

Many of them are Yemeni, and many of them were provisionally approved for transfer by Bush administration review boards and then again by a 2009 task force set up by President Barack Obama. Neither administration would repatriate them, citing insecurity in their country. The Obama administration, however, has been trying to fashion individual resettlement deals for some of them in other countries on a case-by-case basis.

But Congress has made that increasingly difficult. Successive legislation has forbidden the transfer of detainees to the United States for any reason, and imposed other restrictions. Now, the GOP-led House Armed Services Committee has drafted legislation that would expand the restrictions to require Secretary of Defense certification that a detainee’s future dangerousness has been mitigated and forbid transfer to certain countries likely seen as suitable locations by the Obama administration, such as Afghanistan, Saudi Arabia and Oman.

At the White House Wednesday, spokesman Josh Earnest lamented congressional “barriers” to Obama’s goal of closing the detention center, calling the prison “not consistent with the wise use of our government resources” and “counterproductive.”

He did not, however, offer an opinion on the idea of reparations.

A few former detainees have tried to sue the United States for compensation, using different legal theories. But U.S. government lawyers have successfully thwarted having the cases heard. In 2010, Britain paid undisclosed millions in compensation to former Guantánamo prisoners who accused the British government of complicity in their detention.

Stevens, a U.S. Navy veteran of World War II, called the detention center a “wasteful extravagance” that should be closed “as promptly as possible.” He adopted a calculus that currently estimates that it costs $3 million a year to keep a single detainee at Guantánamo — a formula that the commander of the U.S. Southern Command, Marine Gen. John F. Kelly, disputed a year ago in sworn testimony.

Stevens’ talk, which was posted on the U.S. Supreme Court website, invoked President Franklin D. Roosevelt’s decision to intern thousands of Japanese Americans during World War II, and noted that the United States twice paid reparations — $37 million in 1948 and $1.2 billionin 1988. He also noted that the overwhelming majority of Guantánamo detainees released from the prison camps were sent away during the administration of George W. Bush.

His remarks come as four former Guantánamo captives who were released in December to resettlement in Montevideo, Uruguay, have been protesting at the U.S. Embassy, seeking compensation for their lost years at the prison camps in Cuba. Those men included Syrians who had been cleared for a long portion of their time at Guantánamo but who the U.S. concluded could not be safely repatriated.

Stevens wrote the Supreme Court’s landmark 2006 decision in Hamdan v. Rumsfeld that struck down Bush’s first effort at trying war-on-terror captives by military commission, forcing the president to obtain congressional approval for the war court. Two years earlier, Stevens wrote the majority opinion in Rasul v. Bush, which held that Guantánamo captives were entitled to habeas corpus review — something Congress for a time thwarted through legislation. Neither mentioned reparations.

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Justice Stevens’ speech, as posted on the U.S. Supreme Court website, here.