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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.

1.

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.

2.

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.

The Court divided, 5–4. Rehnquist, in an opinion joined by Justices Antonin Scalia, O’Connor, Kennedy, and Clarence Thomas, overruled the Second Circuit. He held that Padilla’s lawyer had sued in the wrong place. The federal habeas corpus statute, he said, requires detainees held in the United States to sue their immediate custodian—in Padilla’s case, Melanie A. Marr, the commander of the naval brig in which he is held—rather than any higher official such as the defense secretary, and to sue that custodian in the federal district of custody, that is, in South Carolina.

Rehnquist cited century-old Supreme Court precedents which held that the proper defendant in a habeas corpus proceeding is “the jailor” or “some person who has the immediate custody of the party detained,” and that the proceeding must be brought where the jailor is to be found.12 He conceded that the Court had in the past created several exceptions to that rule, but analyzed these exceptions in detail to show that none applied explicitly in this case. So the Court dismissed the case on that procedural ground, forcing Padilla, if he wished further to contest his long in-communicado imprisonment, to begin all over again in South Carolina. (His lawyer has now done so.)

Justice John Paul Stevens, joined by Justices David Souter, Ruth Ginsburg, and Breyer, filed an eloquent dissent in which he decried the Court’s deciding a case that “raises questions of profound importance to the Nation” through a “slavish application” of a procedural rule.13 The pertinent question, he said, is not whether any of the established exceptions to the jurisdictional rule applies, but whether the principles underlying the rule, in the light of which those exceptions were recognized, also require a new exception to be recognized in this case. The point of the jurisdictional rule, he wrote, is to discourage “forum shopping,” that is, a prisoner’s choosing the jurisdiction whose judges he considers most favorable to him.

Several of the exceptions were designed to prevent the government from using the same tactic. In one case, for example, after the prisoner had sued in one jurisdiction, the government moved him to a different one. The Court held that in those circumstances he was entitled to continue to sue in the original jurisdiction. Stevens argued that a parallel exception is required for the same purpose in Padilla’s case. The government began its proceedings against Padilla in New York, and moved him to South Carolina only after a New York court had already taken jurisdiction over his demand to be freed. The fact that the government had also changed the basis on which it sought to detain him should not matter: if the government had given him advance warning of the change, his attorney would have filed a differently worded challenge in New York before he was moved.

It would be a mistake to think that the Court’s decision has only procedural and no substantive impact. If the government can choose the forum in which it litigates by imprisoning detainees there, it can expect to improve its chances of persuading lower courts to interpret O’Connor’s vague standards in their favor and to hold that a detainee has failed to meet the burden of proof she imposed. Padilla may well have less chance of persuading the Fourth Circuit, in Richmond, Virginia, which proved itself so sympathetic to the government’s arguments in the Hamdi case, that he did not fight against the United States than he would have of convincing the courts of a different circuit.

Indeed, since the Court decided, in the third of the three recent decisions on detention, that prisoners held in the Guantánamo Bay detention camp can petition for habeas corpus in an American federal court, it is now unlikely that the government will bring any more prisoners to that camp. The Los Angeles Times has reported, in fact, that the government was initially considering moving those detainees already at Guantánamo, and whom it does not wish to release soon, to South Carolina or some other “conservative” district. It would therefore seem fairer for the Court to have guarded against “forum shopping” by the government as well as detainees. The Court could have done that by concluding that when detentions are ordered by the President or another federal official, the President or that official is a proper defendant in a habeas corpus proceeding and the District of Columbia the proper venue.

3.

Rasul v. Bush

The federal habeas corpus statute provides that federal district courts have the authority to hear applications for habeas corpus “within their respective jurisdictions.”14 The Bush administration constructed its notorious detention camp at Guantánamo Bay in Cuba on the assumption that this provision rules out habeas corpus actions by prisoners detained in places where the United States is not the sovereign power and therefore are under the jurisdiction of no federal court. Two Australian and twelve Kuwaiti citizens who are among the approximately six hundred detainees at Guantánamo nevertheless filed habeas corpus petitions in the federal district court of the District of Columbia, asking for release from custody, access to a lawyer, freedom from interrogation, and other forms of relief. (Two British detainees, including Shafiq Rasul, were originally among the plaintiffs, but have now been released and returned to Britain.)

Justice Stevens, joined by O’Connor, Kennedy, Souter, Ginsburg, and Breyer, held that “respective jurisdictions” means the jurisdiction not where the prisoners are detained but where the officials responsible for their detention may be found, and that when the government holds prisoners in foreign territory under its effective and permanent control but not within the jurisdiction of any federal court, a habeas corpus petition may be brought in a federal court in the United States which has jurisdiction over the President. The government had relied on the Supreme Court’s 1950 decision in Johnson v. Eisentrager, which held that German citizens captured in China during World War II, convicted of war crimes by a United States military commission in Nanking, and then imprisoned in the Landsberg prison in occupied Germany had no constitutional right to bring a habeas corpus action in an American court.

Stevens noted that the “jurisdiction and control” of the United States over Guantánamo Bay was based on an (in effect) permanent lease granted by Cuba long ago. He then argued that the Eisentrager decision was based on assumptions about the reach of the habeas corpus statute that were rejected in later Supreme Court decisions, and therefore did not apply to the detainees in Guantánamo. In a concurring opinion, Kennedy offered a different argument based not on distinguishing the Eisentrager case from the current one but rather on applying that decision, which, he said, established a sliding scale for determining the rights in American courts of alien prisoners held abroad. Aliens who had been determined by a tribunal to be citizens of an enemy power, like the German prisoners, had no rights at all, but the Guantánamo detainees, who may include “friends and foes alike,” could not be held indefinitely without trial or other proceeding. Six of the justices therefore held that detainees who are not citizens could petition for habeas corpus in federal courts so long as they were in areas, such as Guantánamo, under effective and permanent control of the US.

In a sharp dissent, Scalia, on behalf of himself, Rehnquist, and Thomas, said that the Court was in effect overruling Eisentrager, which was unfair to the government because it had relied on that decision in transferring its prisoners to Guantánamo. He warned that the Court’s decision would have disastrous consequences. Stevens’s analysis, Scalia maintained, would mean that American military prisoners held not just in Guantánamo but anywhere in the world now controlled by Americans—in Iraq, for instance—could sue the government in American courts. “Since ‘jurisdiction and control’ obtained through a lease is no different in effect from ‘jurisdiction and control’ acquired by lawful force of arms, parts of Afghanistan and Iraq should logically be regarded as subject to our domestic laws.”15

Of course these three decisions taken together will have some impact on the Bush administration’s detention policies, but, contrary to Scalia’s dissent, that impact may well be very limited. Hamdi and Padilla may continue to challenge their detention with the help of lawyers, but they face, as I have said, a difficult burden of proof. The Pentagon, apparently anxious to prevent a flood of habeas corpus petitions on behalf of Guantánamo detainees, immediately announced that it was creating a Combatant Status Review Tribunal, staffed by military officers, in which these detainees might challenge their designation as enemy combatants.16 The detainees would be allowed the help of “personal representatives” assigned by the government, but they would be permitted no lawyers and they would face a “rebuttable presumption in favor of the Government’s evidence.” In spite of O’Connor’s statement that Hamdi unquestionably had the right to counsel in further proceedings in his case, the Pentagon’s press release claimed that these new tribunals comply with all the requirements the Supreme Court has imposed even for detaining citizens in the United States.17

The administration has long planned to try some of the detainees for war crimes before other military tribunals, and more recently said that the trials of fifteen such detainees would begin soon. The procedures and regulations already announced for those criminal tribunals, though defective, provide more protection than O’Connor said was required to hold citizen-detainees indefinitely without trial. It is therefore important to consider the other possibility that I have mentioned: that in future cases the verdicts and reasoning in these three cases will be understood as having much more power to constrain the government’s treatment of its prisoners.

4.

The Geneva Conventions draw a fundamental distinction between two classes of people that a nation might capture in war or other military action. One class must be treated as prisoners of war, which means, among other things, that they may not be punished simply for bearing arms against the capturing nation, that they must be held in conditions comparable to those of the soldiers guarding them, and that they may not be exposed to coercive interrogation. The second class includes not only civilians fighting independently of any government but soldiers in a more organized action who do not wear uniforms or other identifying badges or who fight with a force that does not respect the laws of war. They are not entitled to prisoner-of-war status; they may therefore be prosecuted and punished as criminals for acts of war, though the Geneva Conventions require that they be treated humanely.

The Bush administration claims that these provisions allow it to detain some prisoners, whom it calls “unlawful combatants,” indefinitely without charge or prosecution, even though they are not treated as favorably as prisoners of war and may be subjected to coercive interrogation. It claims that Hamdi, Padilla, and its other prisoners belong to that category, and it may continue to do so if, as seems likely, they are unable successfully to challenge their detention before military commissions or in habeas corpus proceedings. In an earlier article in these pages I argued that, whether or not this option is permitted by a strict understanding of international law, a decent respect for human rights requires that the administration set it aside and choose between prosecuting its prisoners as criminals, with the normal safeguards of the criminal process, and treating them as prisoners of war, which would mean an end to round-the-clock interrogation, sensory deprivation, humiliation and other forms of coercion. I said that the administration’s present policy shows an impermissible contempt for the rights and dignity of its victims.18

The Court’s recent decisions suggest that a new and stronger claim can now be made: that the government’s treatment of prisoners it calls “unlawful combatants” is not only morally indefensible but forbidden by the Constitution as well. O’Connor argued in Hamdi that indefinite detentions of American citizens without trial would violate the due process clause unless the procedures and circumstances of the detention were justified by strong reasons of security or were necessary to free the military from serious burdens that might compromise its efficiency. True, she was discussing the procedures the government must follow in deciding to imprison people, not their conditions of imprisonment. But the two are inextricably connected in her argument, because the requirements of due process, she said, are fixed not only by the government’s interests in security and efficiency but by the magnitude of the harm that an erroneous determination would inflict on a detainee who was not in fact an enemy combatant. The harm imposed by an erroneous classification is plainly much greater when the government holds detainees under the harsh conditions it now imposes than when it subjects them only to the less fearsome conditions of conventional prisoners of war.19

In a variety of ways, O’Connor’s opinion suggests that her balancing test would justify detention only under conditions similar to those required for prisoners of war. After declaring that “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection,”20 she said that “on the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.”21 That is the orthodox justification for the rules set out in the Geneva Conventions, which O’Connor cited along with much comment of international lawyers to the same effect.22 But that purpose is no better served when the protections of the Geneva Conventions are ignored. Prisoner-of-war status would not permit the coercive methods of interrogation the Bush administration has authorized in these places. But in what might prove to be the most important sentence in her opinion, O’Connor said, “Certainly, we agree that indefinite detention for the purposes of interrogation is not authorized.”23

O’Connor’s analysis therefore implies that the minimal standards she described as satisfying due process would not justify the government’s continuing to subject Hamdi and Padilla to coercive interrogation. These standards justify detention only for the purposes she indicated—keeping freed prisoners from returning to fight against the US. It is worth noting that Souter, in his carefully argued concurring opinion in Hamdi, said that the Court would be right in assuming that Congress had authorized Hamdi’s detention only if the government was treating him as a prisoner of war, which it plainly is not.

Hamdi and Padilla are American citizens, and it is a further question whether the constitutional ban I have been describing applies to the government’s treatment of foreigners as well. O’Connor restricted her discussion to “citizen detainees.” Scalia argued in a dissenting opinion in the Hamdi case that the government had no authority to hold Hamdi and Padilla at all, unless Congress suspends the writ of habeas corpus. He stated explicitly, however, that his argument applies only to US citizens. But the protection of the due process clause in the Constitution is not limited to citizens: it requires that government deny no person due process of law. In a 2001 case in which an alien detained in the United States claimed he had been deprived of due process, Breyer held for the majority that, for such a person, “deprivation of human liberty” without due process obviously presents a “serious constitutional problem.”24

In his opinion for the Court in the Eisentrager case, Justice Robert Jackson (who had been the chief United States prosecutor in the Nuremberg trials of Nazi leaders after World War II) said that the due process clause cannot be understood to give the same rights to all “persons” that it gives to American citizens, and that the rights it bestows on detained aliens depend on a variety of facts, including whether the alien is detained in the United States, whether he has ever been in the United States, and, in particular, whether he is a citizen of an enemy nation. Jackson held that German citizens who sought to continue the war against the United States in the Far East after Germany’s surrender, but before Japan’s, had no substantial due process rights. But as Kennedy suggested in his concurring opinion in Rasul, that is no precedent for refusing even minimal due process protection to US prisoners in Afghanistan, Iraq, and elsewhere who are not citizens of nations with whom we are at war. The historical core of due process, and its most fundamental point, is the right of individuals not to be arbitrarily and indefinitely imprisoned; if noncitizens across the world have any due process protection against our government at all, they have that right.

That seems the plain implication of the Court’s 6–3 Rasul decision. Though Stevens ostensibly decided only what he called the “narrow” question of whether American courts have jurisdiction over Guantánamo detainees under the habeas corpus statute, he must have assumed that those detainees had rights to due process that a habeas corpus petition on their behalf might cite. He said that the allegations of the prisoners who had sued—that they had been detained for more than two years without being charged or permitted a lawyer even though they had committed no act of war or terrorism—“unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United States.’”25

As Scalia insisted in his dissent in that case, it would be arbitrary to suppose that the Guantánamo detainees have rights that those detained in, say, Iraq lack. The fact that American control over Guantánamo is of longer standing than its equally effective control over camps in Iraq, for example, can make no difference in deciding what level of traditional due process rights alien detainees are owed. Otherwise, as Justice Hugo Black warned in his dissent in the Eisentrager case, government could evade its due process responsibilities simply by incarcerating foreigners in one of its many prison camps rather than another.

Scalia thought the implications of the Court’s opinion in the Rasul case frightening: he imagined prisoners wherever the US military fights suing in American courts to protest their treatment. O’Connor responded to his fears: she said that the right balance between due process protection and military efficiency can be struck by measures that impose no burdens of record-keeping and military commission review beyond those the US military has traditionally maintained. If I am right, her claim presupposes that we do not subject those we hold without trial to harsh treatment and objectionable methods of interrogation. But we should be willing, out of respect for our own traditions and values, to accept whatever unknown loss of efficiency this deference to morality may entail.

Our Constitution demands that we run that risk in our ordinary criminal process: no doubt our police would be more efficient in preventing crime, and we would all be safer, if we ignored the rights of due process at home. The world is shocked by our willingness to abandon what we claim to be our most fundamental values just because our victims are foreigners. We must hope that Camp X-Ray and Abu Ghraib soon become symbols of a national aberration, like the Japanese-American internment camps of World War II, that we must take care not to repeat, rather than evidence of what, to our shame, we have now become.

—July 14, 2004

  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.

  12. 12

    Rehnquist, 6.

  13. 13

    Stevens, 1.

  14. 14

    28 USC ¦¦2241(a), 9(c)3.

  15. 15

    Scalia, 14.

  16. 16

    See Department of Defense, News Release, “Combatant Status Review Tribunal Order Issued,” July 7, 2004.

  17. 17

    The press release relied on O’Connor’s reference in her Hamdi opinion to the Army regulations governing determination of prisoner-of-war status. Its reliance might be misplaced: see footnote 23 below.

  18. 18

    See my article “”Terror and the Attack on Civil Liberties,”” The New York Review, November 6, 2003. See footnote 2 of that article for a more detailed account of the pertinent international law and of criticism of the government’s claim by international lawyers.

  19. 19

    In her formal statement of the balancing test she said that due process requires, she relied on the Court’s important 1976 decision in Mathews v. Eldridge, 424 US 319:

    Mathews dictates that the process due in any given instance is determined by weighing the “private interests that will be affected by the official action” against the Government’s asserted interest, “including the function involved” and the burdens the Government would face in providing greater process.

    See O’Connor, 22. The private interests at stake are obviously much greater, and the government interests that would be required to outweigh those interests must be much graver, when a detainee is threatened with isolation and the variety of forms of intimidation we are now aware our government uses.

  20. 20

    O’Connor, 23.

  21. 21

    O’Connor, 24.

  22. 22

    O’Connor, 12–13.

  23. 23

    O’Connor, 13. O’Connor referred to the military commissions the Army uses to determine whether prisoners are entitled to prisoner-of-war status as examples of commissions it might use to determine when citizens are enemy combatants. The regulations she cited specify that such tribunals must choose between declaring a detainee to be a prisoner of war or a “Civilian Internee who for reasons of operational security, or probable cause incident to criminal investigation, should be detained.” Civilian internees may be tried and punished in courts-martial, with lawyers of their choice, for acts hostile to the United States—for example as “spies and saboteurs.” But “no form of physical torture or moral coercion” may be used against any civilian internee, and any abridgment of his right to communicate with the outside world must be “an exceptional and temporary measure.” See Army Regulation 190-8, sections 1-6 and 5-1.

  24. 24

    Justice Breyer for the Court in Zadvydas v. Davis, 533 U.S. 678 at 692 (2001). The detention in this case took place within the United States, and Breyer distinguished it from a previous decision in which the Court denied relief to an alien who had been refused permission to enter the country and had been held indefinitely on Ellis Island because no other country was willing to receive him. That previous decision is plainly no authority for the proposition that government may indefinitely incarcerate and interrogate an alien without trial in territory subject to its control abroad.

  25. 25

    Stevens, 15, footnote 15.

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