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Harmful Rulings
Enemy combatants and an irresponsible Court.


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Let’s start with the bad news, and then move to the worse news. The Bush administration has been dealt a serious setback by the Supreme Court’s rulings in two out of the three cases decided on June 28 regarding the government’s enemy-combatant-detention policies. As a crass political matter in this election season, we can be sure that the Kerry campaign, backed by a chorus from the establishment media, will crow that President Bush’s policies have been slapped down as “lawless” and inimical to our traditions of civil liberties. But far more important, and far worse, are the effects these rulings will have on the rule of law and the conduct of the war. In that respect, the nation, and not just the Bush administration, has been harmed by the Supreme Court.

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In Rumsfeld v. Padilla, by a 5-4 vote, the Court correctly held that the attorney for Jose Padilla (the alleged al Qaeda “dirty bomber” apprehended in Chicago and subsequently held as an unlawful enemy combatant by order of the president) brought a petition for a writ of habeas corpus to the wrong federal district court when she moved in the southern district of New York, rather than in South Carolina, where Padilla was then and still is held in a naval brig. Chief Justice Rehnquist relied on the traditional standard that the writ must issue, if at all, to the person who has the detainee in his physical custody. That’s the navy’s Commander Melanie Marr, not Secretary Rumsfeld, so the court in New York has no jurisdiction over the case. The ruling is so obviously right that the only surprise (if surprise were still possible for us Court watchers) is that four justices dissented from Rehnquist’s conclusion. So Padilla’s case is punted for now. Surely his lawyer is even now rewriting her petition to present it in South Carolina.

Hamdi v. Rumsfeld is a much more complicated case–in fact, a real mess in which only one justice saw the issues properly. (And this mess will ultimately have a decisive bearing on Padilla’s case when it is brought in the right court.) Unlike Padilla, he was apprehended overseas, in Afghanistan. Turned over to U.S. forces by the Northern Alliance, he was initially held at Guantanamo Bay naval base in Cuba, then transferred to the U.S. when it was determined that he is an American citizen by birth. But like Padilla, Hamdi is a U.S. citizen held on the direct order of the president as an unlawful enemy combatant.

Also like Padilla–and like the alien detainees at Guantanamo (more on them later)–Hamdi has been held as a detained combatant, not as a jailed pre-trial criminal defendant, under the authority of the Authorization for the Use of Military Force (AUMF) passed by the Congress on September 18, 2001. That law is the partial basis for the “Military Order” proclaimed by President Bush on November 13, 2001, in which he authorized military detention, and/or trial by military commission, of enemies apprehended in the war authorized by the AUMF. Bush’s order–needlessly–excluded U.S. citizens from its coverage, which is why separate and specific detention orders were issued by the president in the cases of Hamdi and Padilla; but their detentions proceeded from the same statutory authority.

In Hamdi, Justice O’Connor held for a plurality of justices that the AUMF is sufficient statutory basis for the detention of combatants who happen to be U.S. citizens–i.e., that the AUMF satisfies the requirements of a law passed in the 1970s providing that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Justice Souter, joined by Justice Ginsburg, insisted that the AUMF is insufficient because it doesn’t specifically mention detention, but O’Connor is surely right that such detention is an inescapable concomitant of waging war.

Then O’Connor muddies the waters. Holding that Hamdi had not yet been accorded an adequate process for rebutting the allegation that he was an enemy combatant in the ranks of the Taliban, she offers some cursory and improvisational guidance for the lower courts on how to provide adequate process in such a case. A little hearsay on the government’s side may be okay, and perhaps the burden can shift to the detainee who seeks his freedom, and it might even be okay for the process to be carried out by a “properly constituted military tribunal”…but in the end, the detainee must have access to counsel, and the civilian courts will be the final arbiters of whether a captured enemy is a captured enemy, at least if he is an American citizen.

Justice Scalia, in a dissent joined by Justice Stevens, is having none of this hodgepodge of ad hoc due process sloppily constructed by O’Connor. But Scalia’s penchant for hard and fast rules has led him astray, for he poses this false choice to the government: either charge Hamdi with treason or some other offense in the civilian courts, or let him go, unless Congress can be persuaded to suspend the writ of habeas corpus. Scalia hangs a great deal of his argument on Hamdi’s citizenship, giving the back of his hand to the AUMF where American citizens are concerned. But neither habeas corpus nor due process can be said to depend in the slightest on the presence or absence of citizenship, and Scalia’s reasoning is perverse in the case of wartime detentions. As the Pentagon’s general counsel William Haynes wrote nearly two years ago, “During World War II, the United States detained hundreds of thousands of prisoners of war in the United States (some of whom were U.S. citizens) without trial or counsel. Then, as now, the purpose of detention was not to punish, but to protect.”

Moreover, the writ of habeas corpus can be suspended only “when in cases of rebellion or invasion the public safety may require it.” Whatever one thinks of the threat to public safety posed by a Hamdi–and it may be considerable if he were released to rejoin the enemy–we are not facing a “rebellion” or an “invasion” that would meet the essential conditions for suspension of the writ, as to any identifiable persons within U.S. territorial jurisdiction. Perhaps a case like Padilla’s could be covered by a suspension that contemplates a succession of one-man “invasions,” since he was apprehended entering the country to do us harm. But remember, Hamdi was not on U.S. territory when captured or handed over to our military. So he, or any other person similarly situated, could not be targeted by a habeas suspension. Scalia’s suggestion that Congress could suspend habeas corpus to cover a case like this is simply foolish, or disingenuous.

Only Justice Thomas, dissenting solo, sees the issues clearly in the Hamdi case. His is the lone vote for affirming the Fourth Circuit’s ruling that Hamdi may be held as an unlawful enemy combatant, regardless of his citizenship or the location of his detention, under the combined constitutional and statutory war powers of the president. Of course, Thomas says, Hamdi may be held without trial by military authorities only if he is an enemy combatant. But the question whether he is one or not is “committed to other branches” of government, the executive first and foremost: “the Executive’s decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing,” and Hamdi has already had “all the process to which he was due under the circumstances,” with the submission to the lower courts of official evidence regarding the circumstances of his capture. Relying on a raft of sound precedents, Thomas gives one of the best lessons in decades on the separation of powers.

Padilla and Hamdi are just two individuals, and their cases represent manageable problems for the government. But Rasul v. Bush presents truly gargantuan problems. In this 6-3 ruling by Justice Stevens, the Court holds that the more than 600 alien detainees at Guantanamo are entitled to be heard in U.S. federal district courts in habeas corpus challenges to the legality of their detentions. We can now expect a blizzard of lawsuits by self-appointed “next friends” of the enemy combatants held in Cuba.

In the teeth of the formal legal sovereignty still held over Guantanamo by Cuba, Stevens ruled that the practical authority over the detainees exercised by the U.S. military is the controlling principle in the case. As Justice Scalia notes in his dissent (a sensible one this time), the majority’s holding sweeps so far that it doesn’t really matter at all whether the U.S. has a lease on foreign property and thus an arguable legal jurisdiction, as is the case at Guantanamo. It is sufficient that the custodians of the detainees are within the jurisdiction of the courts and thus within the reach of a writ of habeas corpus. That means you, President Bush, and you, Secretary Rumsfeld. The nightmares this ruling could spawn are obvious. In Scalia’s words: “From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.” It seems, from the Court’s ruling, that any detainee, alien or citizen–whether accorded prisoner-of-war status or not–held anywhere at all under U.S. military authority, now has access to any American federal district court, anywhere in our country, in order to challenge whether his detention is legal. Even Saddam Hussein–not yet handed over to Iraqi jurisdiction according to same-day news reports–has this brand-new right.

It is possible that the Rasul decision will not create insuperable problems. Surely the courts will not insist on tougher standards for legitimizing the Guantanamo detentions than the softened due-process requirements set forth for citizens on our soil by O’Connor in the Hamdi case. But more than 600 cases! Habeas corpus is necessarily an individualized determination, not something that can be handled like a class action.

The best solution would be for Congress to step in and provide that the Guantanamo detainees are beyond the reach of our civilian courts. That is clearly within congressional power. But in an election year, with partisanship over this war already at a fever pitch, and with a Senate in particular that has already gone filibuster-happy over judicial nominations, we cannot count on quick action, or even a responsible debate. The Defense and Justice departments are in for an ugly time, thanks to an irresponsible Court.

Justice Thomas reminds us in Hamdi that the war power is “the power to wage war successfully.” Would that we had at least five Supreme Court justices who could consistently remember this.

Matthew J. Franck is professor and chairman of political science at Radford University.



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