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Anti-Terrorism and Due Process

In his book on civil liberties in wartime, Chief Justice Rehnquist wrote that when bullets fly, "laws speak with a somewhat different voice." Traditionally when the nation has been at war, the courts have been overly -- some would say excessively -- deferential to the policy-making prerogatives of the executive and legislative branches.  Normally, the high court will not hear a challenge to wartime actions until after the end of the fighting, unless requested to do so by the administration. To take a few examples, the Court did not rule on the constitutionality of price-fixing until after the end of World War I, but it expedited a review of the draft act, since the Wilson administration had to be certain of its constitutional authority in this area. In the Second World War it upheld the wartime exclusion of Japanese-Americans from the West Coast.

But the war on terror is a different kind of war, with an enemy far different from the traditional nation-state entities of the past.  While there may be definable endings to certain stages of this war, everyone expects that it will go on into the indefinite future. As a result, the courts do not have the luxury of postponing decisions, knowing that even if they rule against the administration after the fact, there will be no adverse repercussions during the actual fighting.

When the Bush administration began hostilities against Al-Quaida and the Taliban in Afghanistan, it locked up a number of prisoners, most of whom they labeled as "enemy combatants" and decided that these men would not be treated as prisoners of war, but held incommunicado and without redress to American courts, even if they were American citizens. Cases attacking this policy began almost immediately, with a majority of the lower courts ruling that the administration had exceeded its authority even under the war powers.  This past Term four of these cases reached the Supreme Court, despite strong efforts by the Justice Department to prevent the courts from hearing these cases.

Walter Dellinger, former acting solicitor general in the Clinton administration, noted that the Court would not be "cavalier" with national security. "But you can't ask the Rehnquist Court to let some other branch of government make all the decisions." Civil libertarians have denounced the administration for gross violations of basic human rights, while its supporters have claimed that the Bush position has been "far more modest and restrained than the actions of the Lincoln and [Franklin] Roosevelt administrations." John Yoo, a former member of the Bush Justice Department, argued that "the government is by no means pushing the envelope."

Ironically, when civil libertarians began warning about the rights of captured enemy combatants, one member of the Bush Administration took interest.  Defense Secretary Donald Rumsfeld convened a panel of constitutional lawyers aware of the wartime mistakes of previous presidents, and they helped draft a policy that gave accused non-citizens the right to counsel before military tribunals, a public trial, appellate review and other protections embodied in the Uniform Code of Military Justice. Then Attorney General John Ashcroft, who of all recent holders of that position has been least interested in protecting civil liberties, dug in his heels, refused to accept the policy, and condemned civil libertarians for aiding the terrorists. So the confrontation in the Court this last Term might easily have been avoided.

Two of the cases, Rasul v. Bush and Al Odah v. United States arose from the detainees kept at the Guantánamo Naval Base in Cuba. The government claimed that the Court had no business even ruling on the legality of detaining aliens captured abroad at a base that is outside U.S. sovereign territory.  Solicitor general Theodore Olsen's brief even complained about "judicial interference with military affairs" and the "truly dangerous precedent of judicial second-guessing of quintessentially military decisions." Although the Court has in the past several Terms paid greater attention to the impact of international accords and treaties, Olson brushed them aside, and denied that the administration had any obligation under international law to give the Guantánamo detainees access to the courts. "Our government reserves that judgment to the political branches which, unlike the courts, may be held politically accountable for that judgment."

In essence, the administration did not ask that the Court uphold its position, but said that the Court had no authority even to hear the case.  Given how strenuously the Rehnquist Court has argued that the judiciary, and not the political branches, is the ultimate interpreters of the Constitution, some commentators saw this as practically waving a red flag at the justices.

The government had a subtler and even more problematic position to defend in the cases of Yaser Esam Hamdi and Jose Padilla, both U.S. citizens designated as enemy combatants. Hamdi was captured in Afghanistan, while the government took Padilla into custody in Chicago. In cases involving American citizens, the administration did not say that U.S. courts should stay out, and in fact conceded that judicial review was appropriate. But that review should be minimal.  Moreover, the administration claimed that neither man had a right to see counsel, although it agreed to let them consult lawyers after considerable public criticism of its position, especially by conservative groups such as the American Bar Association and former federal judges who filed a brief on their behalf and that of the Guantánamo detainees.

Legal scholar seemed to agree that the administration could designate people, even U.S. citizens, as enemy combatants, and in the 1942 German saboteurs case, Ex parte Quirin, the Court upheld the seizure and detention on American soil of German agents, one of whom was an American citizen. But the German saboteurs were tried before a military court and had the benefit of court-appointed lawyers, who took an appeal to the Supreme Court, which in turn accepted and heard the case, ultimately upholding the government.  The Bush administration claimed that it could seize and hold citizens designated as enemy combatants indefinitely, and without granting them access either to lawyers or to the courts.

In All the Laws but One, Chief Justice Rehnquist predicted that "there is no reason to think that future wartime presidents will act differently from Lincoln, Wilson or Roosevelt, or that future justices of the Supreme Court will decide questions differently from their predecessors." But, he noted, in the more recent wartime cases the Court has proven less tolerant of the "least justified" restrictions on civil liberties. "It is both desirable and likely," he went on, "that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing liberty."  Rehnquist's assumptions proved fairly accurate.

The Guantánamo cases involved primarily a technical question, namely whether federal courts had jurisdiction to hear appeals from the detainees.  The administration, and a lower court, relied on a 1950 case, Johnson v. Eisentrager, which involved German prisoners seized by the United States in China and tried in Germany after the Second World War.  At the time the high court ruled that because the Germans were aliens and were not on U.S. soil, they had no right to seek habeas review in American courts. The Bush administration claimed that the Guantánamo detainees were the same as the Germans in Eisentrager, enemy aliens on foreign soil.  But lawyers representing the detainees assert that Guantánamo is hardly foreign soil, since it is under the de facto control of the United States.  Moreover, unlike the Germans, the aliens held there had not been charged with any offense or even found to fit the definition of an "enemy alien" or a "combatant."  Thomas Wilner, representing the Kuwaiti nationals held at the base, charged that American treatment of the aliens was "radically at odds with any constitutional regime of due process or the rule of law."

In Rasul v. Bush, decided along with Al Odah v. United States, a 6-3 majority made it clear that the Bush administration had gone too far in seeking unchecked power to detain and interrogate individuals in its war on terror. The detainees were entitled to review by neutral adjudicators, and in a direct rebuff to the administration and especially the solicitor general (who sat glumly in the court room as the decisions were read on the next-to-last day of the Term), reminded them that the Supreme Court, and no one else, is the final arbiter of the boundaries between the branches, in wartime as well as in peace.

The Court was even more explicit in Hamdi v. Rumsfeld, the case involving an American citizen captured with the Taliban in Afghanistan. "We have long since made clear that a state of war is not a blank check when it comes to the rights of the nation's citizens," wrote Justice Sandra Day O'Connor. "The threats to military operations posed by a basic system of independent review is not so weighty as to trump a citizen's core rights to challenge meaningfully the government's case and to be heard by an independent adjudicator."  Hamdi "unquestionably" had the right of access to a lawyer.

Although Justice Scalia, joined in a rare pairing with Justice Stevens, dissented from the reasoning in O'Connor's opinion in Hamdi, they went even further in rejecting the administration's position.  Reading from his partial dissent, Scalia said the Constitution offered only one way to achieve the administration's goal -- suspension of habeas corpus by a vote of Congress, a step that has not been taken in the contiguous states since the end of Reconstruction.  "If civil rights are to be curtailed during wartime," Scalia wrote, "it must be done openly and democratically as the Constitution requires."

In the last case, that of Jose Padilla, an American citizen arrested in Chicago, the Court side-stepped the issues in his case by declaring that he had sought habeas relief in the wrong court.  By a 5-4 vote, the Court ruled that a federal court in New York where Padilla had brought suit lacked jurisdiction over him, and he should have brought the case in South Carolina, where he had been held in a military jail. The four dissenters said they would have decided the merits of the case, and Justice Stevens accused the majority of shirking its duty.  "At stake in this case is nothing less than the essence of a free society."

About the only victory the administration gleaned from the three decisions is that O'Connor agreed that the government had a limited right to detain people it suspected of involvement in terrorism, but although she did not indicate any hard rule on the length of this detention, she implied that it could not be indefinite or overlong.

Although the administration tried to make the best of the decisions, the fact is that the Court had issued a sharp rebuff to Bush's policy.  Following the decisions the army began making immediate preparation for military tribunals at Guantánamo, and allowed the detainees there access to lawyers. (Although John Ashcroft claimed that the detainees could get due process outside of the federal court system, he failed to say what that meant.) As for Yaser Esam Hamdi, in mid-August the government appeared on the verge of letting him go free altogether, after holding him incommunicado in a navy brig for two years.



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