The Enemy Within

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When the Supreme Court decided three pivotal “enemy combatant”
cases on June 28, media hosannas to the contrary, it was not exactly
a stellar day for liberty in an age of terror. That's not to say
there isn't some cause for cheer. Faced with the administration's
argument that the judiciary should not interfere with the military's
handling of foreign citizens captured on foreign battlefields,
the court asserted its authority as a co-equal branch of government.
And in contradicting the claims of the imperious troika –
President George W. Bush, Attorney General John Ashcroft, and
Secretary of Defense Donald Rumsfeld – that the ongoing war
on terror justifies giving them a blank check to handle prisoners
as they see fit, the court seemingly dealt the administration's
hubris a punishing blow.

But when the details are examined, this was neither the court's
nor liberty's finest hour. Most of the news media have latched
on to the majority's soaring rhetoric: “It would indeed be ironic
if, in the name of national defense, we would sanction the subversion
of one of those liberties … which makes the defense of the Nation
worthwhile.” But the reality is far more sobering: “Enemy
combatant proceedings may be tailored to alleviate their uncommon
potential to burden the Executive at a time of ongoing military

The stakes for civil liberties in these cases were high. The
first, Rasul v. Bush, involved foreign citizens who allegedly
fought on behalf of America's enemies or otherwise supported terrorist
groups like Al Qaeda or the Taliban, and were rounded up by the
military on various battlefields in Afghanistan and the Middle
East. These prisoners were taken to a makeshift detention facility
at the American Naval base at Guantánamo Bay, Cuba, which
is occupied by American military forces under a perpetual lease.
Prisoners at Guantánamo brought a petition in the federal
courts challenging the military's authority to detain them incommunicado
for an indefinite period of time (possibly for life), with no
formal charges, access to legal counsel, or trial. Rasul
concerned the most ancient and revered right in the Anglo-Saxon
legal tradition, the “writ of habeas corpus,” which compels
a jailer to either justify the prisoner's detention under a valid
law or set him free.

The other two cases, Hamdi v. Rumsfeld and Rumsfeld
v. Padilla, involved American citizens apprehended
and transported to military facilities located in the US, after
the president declared them “enemy combatants” subject to indefinite
detention at the whim of the executive. One (Yaser Hamdi) was
purportedly seized by the Northern Alliance on the battlefields
of Afghanistan and turned over to the American military; the other
(Jose Padilla) was arrested at O'Hare Airport, in Chicago. Like
the Guantánamo plaintiffs, each sought habeas corpus relief.

Readers of this column know that we found the administration's
April 28 oral arguments in Padilla “breathtaking,” notably
its position that the court was practically obligated to
grant the president virtually unregulated power to detain American
citizens without anything resembling “due process” (see “Scientific
,” News and Features, May 7). And when the Abu
Ghraib prisoner-torture pictures were leaked on that very day
– mere hours after the government's lawyer denied that acts
of torture were being committed – we predicted that an otherwise
“closely divided” court would likely “shift … in liberty's favor”
(see “Hiding
the Gulag
,” June 21).

And shift it did. Six of the nine justices rebuked the administration
by voting to assert judicial authority to review the legality
of the imprisonment of any foreign-born captive at Guantánamo
who challenged the government's accusations. Even more lopsided
was the court's eight-to-one rebuke of the administration's assertion
that it could designate American citizens enemy combatants and
hold them indefinitely in this country. It appeared to be a huge
victory for civil liberties. But while it is true that the administration's
authority was in theory rebuffed, the nature and extent
of the oversight decreed by the Supreme Court could turn into
a Pyrrhic victory. Here's why.

In the Guantanámo case, Justice John Paul Stevens, writing
the majority opinion for himself and four other justices, concluded
that the Cuban-American lease gave the United States such control
over the Naval base that prisoners held there could appeal to
the authority of the federal courts. (A sixth justice concurred
in the result, giving the prisoners six votes out of nine.) In
an opinion that could hardly be praised for its clarity, the majority
said that, as long as the federal courts had geographic jurisdiction
over the relevant officials in the case – President Bush
and the secretary of defense, among others – it did not matter
that the prisoners were outside US territorial boundaries. The
court left vague its view on the tantalizing question of what
happens to prisoners held by the military in territory –
say, Qatar or Afghanistan – over which the United States
does not exercise the formal control it has in Guantánamo
by virtue of the unusual leasing agreement with Cuba. What if
the administration moves prisoners from Guantánamo to a
location over which the United States does not have total control?
This jurisdictional ambiguity could pose a huge problem for such

Yet having determined that the federal courts have some
theoretical role in responding to the habeas petitions of foreign
enemy-combatant prisoners held at Guantánamo, the court
said little about how the lower courts should go about wielding
that power in practice. “What is presently at stake,” concluded
the court, “is only whether the federal courts have jurisdiction
to determine the legality of the Executive's potentially indefinite
detention of individuals who claim to be wholly innocent of wrongdoing.”
Given the narrow question of jurisdiction that the court had agreed
to review, this limited response was no surprise. However, it
means that we still do not know whether the courts will play a
real role in monitoring governmental overreaching, or whether
they will simply rubber stamp, after cursory review, the Guantánamo
prisoners' perpetual detention.

The outcomes in Hamdi and Padilla are even more
worrisome. In these two cases, the court does offer clues as to
how the lower federal courts might exercise their oversight powers
with regard to enemy-combatant hearings involving US citizens
held in this country – and the implications are not comforting.

The court did not actually decide Padilla, concluding
instead that the plaintiff should have brought his petition in
the federal court in South Carolina, where he had been transferred
from New York. This highly technical ruling permits the government
to choose the judicial forum most favorable to it, since the Fourth
Circuit Court of Appeals, which has jurisdiction over South Carolina,
is the most pro-government of all the federal appeals courts.
To benefit from the Fourth Circuit's inclinations, the administration
and the military need only move prisoners to a facility in South
Carolina; in fact, they could probably even evade court review
altogether by constantly moving a prisoner from one judicial district
to another.

The court, however, did decide Hamdi. Here, the majority
ruled that a citizen in Hamdi's position, designated an “enemy
combatant,” had the constitutional right to contest that designation
and seek release. So far, so good.

But then Justice Sandra Day O'Connor, writing for the majority,
went on to describe how Hamdi could challenge that designation.
Because of the exigencies of the war on terror, such prisoners,
said the court, are not entitled to the same opportunity as ordinary
litigants in federal court to prove their innocence – or, more
properly, to challenge their designation as enemy combatants.
Rather, they are entitled merely to a limited hearing before some
kind of neutral tribunal, to show that they were wrongly apprehended
and are being erroneously held. Such a hearing need not observe
the normal evidentiary rules employed by our judicial system,
under which the government would have to shoulder a heavy burden
of proof. Instead, it would be okay, ruled the majority, to indulge
in a presumption in favor of the government, and thus to impose
the heaviest burden on the prisoner – who, remember, is incarcerated
and usually without any resources – to prove that he's not an
enemy. Worse, the hearing does not even have to be held before
a civilian court: “There remains the possibility that the standards
we have articulated could be met by an appropriately authorized
and properly constituted military tribunal,” said the majority.
This one sentence alone could render Hamdi's Supreme Court victory
wholly illusory.

This questionable “victory” for liberty was excoriated by Justice
Antonin Scalia, the court's archconservative; interestingly, he
was joined by Stevens, arguably the court's most liberal member.
Examining the historic roots of habeas corpus, which date back
to 13th-century England, Scalia argued eloquently that the administration
had only three choices: either charge Hamdi with a crime (Scalia
suggested treason, the offense of a citizen betraying his country
in time of war) and give him a jury trial; convince Congress to
legislate a suspension of the writ of habeas corpus, an extreme
action taken only once in American history, during the Civil War;
or let him go. Scalia understood that the majority's decision
was potentially a loss rather than a victory for liberty: “If
civil rights are to be curtailed during wartime, it must be done
openly and democratically, as the Constitution requires, rather
than by silent erosion through an opinion of this Court.” The
erosion was sufficiently silent to fool the news media, but not

In another dissent, Justice David Souter, writing for himself
and Justice Ruth Bader Ginsburg, took an equally firm position.
Warning against a repetition of the circumstances that resulted
in the detention and relocation of citizens and noncitizens of
Japanese origin from the West Coast during World War II (see “Crossing
the Threshold
,” News and Features, March 5), they concluded
that the government had no choice, based on the current state
of the evidence, but to release Hamdi. However, because of the
need to achieve a majority vote, Souter and Ginsburg partly concurred
in O'Connor's tepid result – and thus threw her their support
– because otherwise Hamdi, lacking a majority, would get no hearing
at all. The O'Connor compromise thus commanded six out of nine
votes, two of them unenthusiastic, with Scalia and Stevens opposing
the government in a separate opinion. Only one justice, Clarence
Thomas, was in favor of authorizing the government to lock 'em
up and throw away the key.

So it's true that liberty achieved a tenuous toehold on June
28. But the Supreme Court's rulings, taken together, have more
the feel of a defensive strike against the swipes taken by the
Bush administration than a positive assertion of civil liberties.
The court unequivocally demonstrated its institutional authority
as a co-equal branch of government and made crystal clear that
it will not tolerate disrespect for its oversight responsibilities;
but what it did with its right hand, it virtually canceled with
its left by leaving the practical exercise of this oversight ambiguous.
Thus the power of the court's lunge on its own behalf stands in
striking contrast to the wishy-washiness with which it asserted
citizens' – i.e., liberty's – interests. For that
reason, the rights afforded those people designated enemy combatants
will be worked out during long and complex future proceedings,
effectively in the hands of the Fourth Circuit – the most pro-government
jursdiction in the land.

9, 2004

A. Silverglate [send
him mail
], co-author of The
Shadow University
, is an attorney with Boston's
Good & Cormier. Dan Poulson assisted with this piece. This article,
from the Boston Phoenix,
is reprinted with permission.

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