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What the Court Really Said

The Supreme Court has finally and decisively rejected the Bush administration’s outrageous claim that the President has the power to jail people he accuses of terrorist connections without access to lawyers or the outside world and without any possibility of significant review by courts or other judicial bodies.1 The Court’s long-awaited decisions, announced on June 28, have been widely hailed by editorial writers as an important defeat for the administration and a significant victory for civil and human rights. These commentators may have exaggerated the practical impact of the decisions, however. Though the Court did insist that even in war executive detention of suspected enemy combatants must be subject to some form of review by a neutral tribunal, it suggested rules of procedure for any such review that omit important traditional protections for people accused of crimes. The government may well be able to satisfy the Court’s lenient procedural standards without actually altering its morally dubious detention policies.

But in the longer run, the Court’s decisions might prove to have a more profound impact, because the justices’ arguments provide the legal basis for a much more powerful conclusion than the Court itself drew—that the Constitution does not permit the government to hold suspected enemy combatants or terrorists indefinitely without charging and convicting them of crimes, according them all the traditional protections of our criminal law process, unless they are treated in effect as prisoners of war. They would then have the benefits and protections allowed by international law, including the Geneva Conventions.

Forcing the government to make that choice would indeed require it drastically to change its treatment of detainees. International law forbids the coercive interrogation of prisoners of war, but the Bush administration now claims the right to subject its detainees to interrogation that is not only coercive but is often, as we now know, reinforced by humiliating and beating them as well as by subjecting them to relentless questioning, sleep and sensory deprivation, waterboarding, and other forms of torture.2 Here I will review the Court’s three decisions in order to identify both the risk that they will be interpreted to permit the administration to continue violating human rights and the possibility that one day they will be understood as forcing the government to respect those rights.


Hamdi v. Rumsfeld

Yasir Esam Hamdi is a twenty-four-year-old American citizen who was born in Louisiana, raised in Saudi Arabia, and captured in Afghanistan in 2001 by forces of the Afghan Northern Alliance fighting the Taliban. He was turned over to the American army. The government sent him to Guantánamo Bay but then, on discovering his citizenship, transferred him first to a military prison in Virginia and then to a naval brig in South Carolina, where he has remained for more than two years incommunicado and, until recently, with no access to a lawyer.

Hamdi’s father brought a habeas corpus petition on his behalf in June 2002—a procedural petition demanding that jailers justify in court their detention of a person—alleging that Hamdi was not fighting along-side the Taliban, as the government claimed, but had gone to Afghan-istan as a volunteer relief worker. The army responded with a nine-paragraph memorandum signed by Michael Mobbs, a minor Defense Department official, declaring, without supporting evidence, that Hamdi was with a Taliban unit and was captured with a Kalashnikov rifle in his possession when that unit surrendered to the Alliance. Lawyers acting for the elder Hamdi then filed a new petition asking that the government either release Hamdi or produce substantial and detailed evidence supporting Mobb’s memorandum.

A Virginia federal district court agreed that the memorandum on its own was insufficient to justify holding Hamdi. It ordered the government to produce much more elaborate records of the kind that would be required in an ordinary criminal prosecution. The Fourth Circuit Court of Appeals, however, reversed the district court. It declared, over powerful dissents, that the President as commander in chief has the constitutional power to declare any person captured in any theater of military operations to be an enemy combatant, and that no court has the power to review that presidential designation.3

The Supreme Court has reversed the Fourth Circuit and remanded the case to the district court for further action in accordance with its own decision. Justice Sandra Day O’Connor wrote an opinion in which three other justices—Chief Justice William Rehnquist and Justices Anthony Kennedy and Stephen Breyer—joined, and which is therefore the “plurality” and controlling opinion in the case.4 Federal law provides that no “citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”5 But O’Connor held that the Authorization for Use of Military Force Act, which Congress passed after September 11 authorizing the President to pursue al-Qaeda and those supporting it, by clear implication gave him the power to detain enemy forces captured in battle. The laws of war, she wrote, by very long tradition acknowledged in much American and international law, allow a warring power to detain captured enemy forces until the end of hostilities. Congress plainly intended the President to have that power, she said, in order to prevent captured enemy forces from rejoining the enemy to fight again.

The question before the Court, O’Connor wrote, was therefore a constitutional one: not whether Congress had authorized the President to detain enemy combatants, but whether the President’s exercise of that power to detain American citizens without serious judicial review violates the Constitution’s Fifth Amendment, which says that no person may be deprived of liberty without “due process of law.” That constitutional question can be resolved, she said, only by balancing the grave harm that would be done to a person who is erroneously and indefinitely imprisoned against the danger to our security and the burdens placed on our military forces from allowing prisoners to claim judicial review of their detentions. The Virginia district court had granted too much protection to the individual, O’Connor said, at too heavy a cost to security, by insisting that Hamdi could be detained only if he was proved to be an enemy combatant by the standards of evidence required in an ordinary criminal trial. The Fourth Circuit court, on the other hand, granted too little protection in holding that because Hamdi was captured in a “theater” of military action, the President’s declaration that he was an enemy combatant could not be challenged at all.

The proper balance, she said, requires that

a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.6

Hamdi, she added, “unquestionably has the right to access to counsel in connection with” any further proceedings.7 She emphasized that the only legitimate purpose of detention without trial is to prevent an enemy combatant from fighting again, and therefore that a citizen may not be detained after hostilities have ceased in the area in which he is said to have fought.

But O’Connor’s more detailed suggestions undermine the protection these abstract statements might initially seem to give. The neutral tribunal to which detainees must be allowed to appeal, she said, need not be an ordinary court but might, indeed, be an “appropriately authorized and properly constituted” military commission.8 The evidentiary rules of such a tribunal, she added, might be much more favorable to the government than those of an ordinary criminal court. In particular, hearsay evidence might be permitted; indeed, she suggested, the hearsay evidence of the sketchy Mobbs memorandum might be sufficient.9

She then added an even more extraordinary qualification: the normal burden of proof might be reversed, she said, so that a detainee would be required to prove that he was not an enemy combatant instead of the government being required to prove that he was.10 Even the regulations the Defense Department has proposed for the military tribunals that are about to begin trying some detainees for war crimes in Guantánamo—tribunals that have been denounced by defense lawyers and other groups as unfair—do not impose on an accused person the burden of proving his innocence.

Hamdi’s situation illustrates how difficult a task a prisoner faces under O’Connor’s suggestions. True, she requires the government to reveal its evidence to Hamdi and his lawyer, and to allow him to contest the allegations it contains. But if the government need reveal no more than what has already been revealed in the Mobbs memorandum, and if Hamdi has the burden of proving the allegations in that memorandum false, his opportunities to do so may be very limited. If there were friendly witnesses to his seizure by the Northern Alliance, he might be able to persuade them to testify before a military commission and to persuade the commissioners to believe them rather than the Mobbs memorandum. But if there were no friendly witnesses willing to testify, he might be forced to find a Northern Alliance warlord somewhere in the Afghan desert who is willing to submit to deposition and cross-examination.

In any case, O’Connor said, Hamdi must be freed when the fighting he is said to have joined has ceased. But she noted that fighting continues in parts of Afghanistan, and the government may claim that since, in its view, Hamdi left Saudi Arabia to fight for Islam, rather than in some particular place, it may hold him until it deems the “war against terrorism” has finally been won. O’Connor is no doubt right that it would be unduly burdensome to require the military to prepare elaborate dossiers describing and justifying the capture of every prisoner it takes. But her methods of protecting the military from such burdens do not give much protection to detainees.


Rumsfeld v. Padilla

José Padilla is a Brooklyn-born American citizen who converted to Islam. This June, Deputy Attorney General James Comey called a press conference in which he accused Padilla of having important ties to al-Qaeda. Padilla, he said, had conceived his own plan to explode a radioactive “dirty bomb” in the United States, but al-Qaeda had rejected this and told him to blow up buildings with natural gas instead.11 After four years in the Middle East, Padilla returned to Chicago, where he was arrested under a federal warrant declaring him to be a material witness in the September 11 investigation, and he was then sent to prison in New York. His court-appointed New York lawyer challenged the arrest in a New York federal district court, whereupon the government withdrew the claim that he was a material witness, declared him an enemy combatant, and transferred him to a military base in South Carolina, where he has been held for over two years incommunicado, subject to intensive interrogation, with no access, until late last year, to any lawyer.

Just after Padilla was transferred to South Carolina, his lawyer filed a petition of habeas corpus in the New York federal court naming Donald Rumsfeld as defendant. That court dismissed the petition, holding that the President and his top officials are not required to defend in court their designation of a captured person as an enemy combatant. The Second Circuit Court of Appeals in New York reversed this decision and held that, on the contrary, the government had no right to hold Padilla without charging him with a crime. The government appealed to the Supreme Court.

  1. 1

    Hamdi et al. v. Rumsfeld, Secretary of Defense, et al., No. 03-6696; Rumsfeld, Secretary of Defense v. Padilla et al., No. 03-1027; Rasul et al. v. Bush, President of the United States, et al., Nos. 03-334 and 03-343; all decided June 28, 2004. References here to the opinions in these cases are to pages of individual justices’ opinions in the electronic version of the slip opinions.

  2. 2

    See Anthony Lewis, “”Making Torture Legal,”” The New York Review, July 15, 2004.

  3. 3

    The Fourth Circuit includes Maryland, Virginia, West Virginia, North Carolina, and South Carolina. Its circuit court is based in Richmond, Virginia. The proceedings in the district and circuit courts were more complex than a compressed summary can indicate. For the full history of the litigation before it reached the Supreme Court, see O’Connor’s opinion, at 3ff.

  4. 4

    The remaining justices divided in their responses to the plurality opinion. Justice Souter, in an opinion joined by Justice Ginsburg, argued that it was unnecessary to reach the constitutional issue the plurality had explored because, on a correct interpretation, Congress’s Forces Declaration of 2001 did not create any exception to the 1787 act that would permit the government’s treatment to treat Hamdi as it has. In an odd and unusual coupling, Justice Stevens, who is among the Court’s most liberal justices, joined Justice Scalia, who is among its most conservative, in dissent: the due process does not permit the Court to weigh its absolute protections against other values, Scalia said, so that the Court should have overruled the Fourth Circuit with instructions not that Hamdi’s detention should be reviewed by some tribunal under the special regime O’Connor described but that he should be either indicted and tried in the normal way or released. Justice Thomas also dissented, but in the opposite direction. The President as commander in chief must have sole power over the pursuit of military action once Congress has authorized that action, Thomas said, and no court should presume to question the president’s decision.

  5. 5

    This statute was enacted in 1950 mainly to prevent detentions like those of Americans of Japanese descent in World War II.

  6. 6

    O’Connor, 26.

  7. 7

    O’Connor, 32.

  8. 8

    O’Connor, 31.

  9. 9

    O’Connor, 32.

  10. 10

    O’Connor, 27.

  11. 11

    Comey admitted at the press conference that the government probably could not introduce any evidence to support these allegations in a criminal trial. Comey’s conduct in publicly stating allegations against Padilla that he could not support in court while the Supreme Court was deciding Padilla’s case was dangerously unprofessional. See Anthony Lewis, “”Making Torture Legal,”” and Scott Turow, “Trial by News Conference? No Justice in That,” The Washington Post, Outlook section, June 13, 2004.

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