The Enemy Within

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 conflict.”

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 Uncertainty,” 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 prisoners.

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 Scalia.

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.

July 9, 2004

Harvey 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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