Politics & Policy

A Mixed Bag

The Supreme Court's combatants decisions.

The Supreme Court’s much-anticipated decisions Monday in the three cases involving enemy combatants detained by the executive branch during wartime are a mixed bag for the government: a tie, a shaky win it can probably live with, and a defeat that could be catastrophic.


In the most interesting case, Rumsfeld v. Padilla, the court issued its least interesting decision–ducking on procedural grounds the question of whether the government may detain as an enemy combatant during wartime an American citizen apprehended on American soil in the apparent process of planning, but not yet executing, a domestic attack against the United States. The case had been fought out on the merits in extensive proceedings before both the U.S. district court and the Second Circuit Court of Appeals, both in Manhattan. But the Supreme Court, after also hearing spirited arguments on the merits, punted, avoiding decision on the technicality that Padilla had brought his suit in the wrong place.

Padilla, upon being declared an unlawful enemy combatant, had been transferred from law-enforcement custody in New York (where he had been challenging his arrest) to military custody in South Carolina. The federal government and the Department of Defense are obviously present in New York (it was in fact the government that initially brought Padilla, in custody, to New York after he arrived in Chicago aboard an international flight). But established law dictates that a person seeking to challenge his confinement should sue where he is confined, in this case South Carolina.

There was no reason to think the arguments on the merits would have been any different had the parties made them to a district judge in South Carolina, but the Court, elevating form over substance, kicked the can down the road. This may have been prudent. Its decisions in the other two cases may spur developments–whether by legislation, court action, or both–that obviate future needs to grapple with Padilla’s profound issues.


Hamdi v. Rumsfeld ironically goes in the win column for national security even though some or all of the Bush administration’s position was rejected by eight of the nine justices–only Justice Thomas, nominally a dissenter, would have sustained the nearly unreviewable power the wartime executive was claiming.

Hamdi resembles Padilla in that it involves an American citizen detained by the military, without trial, as an enemy combatant. There is, nevertheless, one salient distinction: Yaser Esam Hamdi was captured on a foreign battlefield in Afghanistan, allegedly armed and making war with the Taliban against the United States and our ally, the Northern Alliance. That is, he was not initially in what we used to understand as the jurisdiction of the United States courts (although, as further discussed below in connection with Rasul, that understanding, regrettably, may need radical expansion), and there is not nearly the same room for credible contention, as there is with Jose Padilla, that Hamdi was not actively levying war against his country.

The government did not dispute that, as a U.S. citizen, Hamdi was entitled to petition for the “great writ” of habeas corpus–the centuries old vehicle, enshrined in Article I, Section 9, Clause 2 (“the Suspension Clause”) of the U.S. Constitution, which protects against arbitrary incarceration at the whim of the executive branch. At issue was what habeas review should entail: (a) did the executive branch have the power to detain even a citizen as a military enemy, without trial and outside the criminal justice system; (b) if so, did the citizen have the right to challenge the executive’s designation of him as an “enemy combatant; and (c) if so, how robust could that challenge be–could he put the government to a full-blown trial, was the court, in the exigencies of war, required to accept the executive’s say-so, or should something in between suffice? These are difficult issues, highlighting the inherent tension between the fundamental but contrapuntal values of individual liberty and national security.

To fathom just how difficult, consider this: Justices Thomas and Scalia (the latter joined here by Justice Stevens), the two jurists most apt to say the Constitution, as originally understood, provides a ready solution, said just that–and came up with solutions that were very nearly diametric opposites, both of which were rejected by the rest of the Court. Those remaining justices, to the contrary, were inclined to massage old principles into innovative new constructs, and in doing so to exercise the law creating powers of the political branches. For this tinkering, the justices have earned the familiar invective from the dissenters and from some on the Right. I find it impossible, though, to pile on; for what it may be worth, I think Hamdi (and to a lesser degree Rasul, below) is more about political cravenness than judicial imperiousness.

In four dizzying opinions, the Court in Hamdi arrived at different, bare and brittle majorities on each of the three afore-described issues. The main plurality (Justice O’Connor, joined by Chief Justice Rehnquist, and Justices Kennedy and Breyer), first picked up Justice Thomas in support of the proposition that, for the duration of active hostilities, President Bush had the power to detain without trial combatants, including Hamdi, because of a sweeping Congressional resolution passed right after 9/11, authorizing him to use “”use all necessary and appropriate force[.]“

The plurality then garnered grudging support from Justices Souter and Ginsburg in ruling that Hamdi had the right to challenge his designation as an enemy combatant in the district court. Had they had their druthers, Souter and Ginsberg would actually have held the detention illegal; but there was insufficient support for such a ruling, so permitting a challenge to the detention was for them the next best thing. Given that lack of enthusiasm, it comes as little surprise that they provided the plurality with even less support for its most controversial holding, regarding the procedure by which Hamdi’s challenge to detention might be effectuated.

On that score, the plurality, balanced (i) what it found to be Hamdi’s due process rights to notice of the factual basis for detention and a meaningful opportunity to be heard against (ii) the national interest in having the military fight the war without being simultaneously tangled in rigorous legal proceedings. The result was the broad outlines of a hearing that would be highly deferential to the executive branch: one that would likely proceed by submission of affidavits, and in which the government would benefit from a rebuttable presumption that the detention was appropriate–meaning the burden of proof would be on Hamdi. Since, as the plurality sensibly noted, the executive branch has already internally satisfied itself that Hamdi is an enemy combatant, it should not be burdensome to submit an explanation to a neutral factfinder (especially since, according to what the government has already disclosed, Hamdi has confessed that he surrendered and presented his firearm to the Northern Alliance).

Importantly, the neutral factfinder need not necessarily be a civilian court. As Justice O’Connor surmised: “[T]here remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal.” Translation: as long as Hamdi is given a meaningful opportunity to convince his captors that he should be released, their denial of his claim will probably be accepted by the Court.

Is there really a majority in Hamdi for a hearing of this nature? Probably. Justices Souter and Ginsberg appear to disapprove the notion of built-in advantages for the government. But it is fair to assume that Justice Thomas would support maximal deference to the executive at such a hearing.

Thomas, an adherent of the muscular wartime executive theory argued by the government, opines that detention is a presidential prerogative in times of armed conflict, and that the court should not be meddling in it to begin with. (Thomas observes that, on the battlefield, an enemy combatant would not have a right to notice and an opportunity to be heard before, say, the CIA permanently prejudiced his liberty interest by firing a hellfire missile at him; thus, he sees no logical reason why a combatant should be vested with such rights if the military avails itself of the more clement option of capture.) Thomas does not see a hearing as necessary at all for the government to prevail, so one would think, a fortiori, he would favor the government having significant procedural advantages at such a hearing.

Thus, even though the government surely wanted to avoid any further inquiry into the basis for Hamdi’s detention, the Court has done it minimal harm here. The prospects for keeping Hamdi detained while the war rages are good.

No discussion of Hamdi can be complete without noting Justice Scalia’s extraordinary dissent. It should long ago have been clear that Scalia, so often maligned and misunderstood by the Left, is the most authentic civil libertarian on the Court. This frequently eludes “progressive” observation because Scalia’s libertarianism is rooted not in pieties and trends but in the rich reservoir of the Constitution as written, not as imagined.

Scalia flatly rejected the Bush administration’s depiction of an omnipotent wartime executive because, he found, it runs counter to the Constitution’s text, edified by common law tradition. In his view, Hamdi’s situation is precisely the one anticipatorily thwarted by the Suspension Clause’s preservation of the writ of habeas corpus: viz., an instance of the executive using the exigencies of a national crisis unilaterally to imprison an American on the unproven allegation that he is dangerous. Does that mean the Constitution leaves us unprotected, unable to neutralize American traitors and terrorists? Not at all: It is for just this contingency that the Framers included the suspension part of the Suspension Clause.

That provision permits Congress to suspend the writ of habeas corpus “in Cases of Rebellion or Invasion.” Therefore, if one rationally considered the 9/11 attacks an “invasion” to which the present war continues to respond, the political branches could end all of these controversies–Hamdi, Padilla, and Rasul–today. That is, they could enact a limited suspension of the writ and close the courthouse doors to all these petitioners, perhaps periodically revisiting whether suspension remains necessary as the war proceeds. They have failed to do so, or at least to have taken responsible measures to address the fundamental liberty issues incontestably implicated by these cases. (I have previously proposed the creation of a national-security court. Obviously, there is room aplenty for other ideas. Congress, however, is the ideal place for this debate.)

To be sure, the abstinence of the political branches here is a function of cold calculation. The president, having gotten a broad resolution back in September 2001, no doubt senses he’ll never get a better one, and that if he asked for a suspension of the writ now–with Iraq and the Patriot Act being pilloried–he’d lose, and that would do great harm to the war effort. Congress, on the other hand, may grasp that suspension would be the right thing to do, but the Democrats, especially in an election year, would never support it–it would make their antiwar base ballistic and would implicitly underscore the seriousness of the threat the president has made the centerpiece of his reelection campaign (not to mention highlighting, yet again, Senator Kerry’s comparative weakness on national security). So they sit on their hands while the court is asked to do the heavy lifting (and then criticized for the way it does so).

For Justice Scalia, the Constitution does not let them off the hook so easily. He sees two choices, both of which call for accountability and neither of which opens the door to judicial legislating: either have the political courage to suspend the writ or charge Hamdi criminally and prove the crimes in court.

There is a purist appeal to this approach, but, this time at least, I fear it is too doctrinaire. Of course Scalia is right that responsible legislation would make this problem go away. But as it is not on the horizon, what are we to do? Have trials? Criminal trials today are not what the Framers would have recognized them as. The breadth of intelligence that now has to be disclosed to terrorists to comport with what the Court has made of due process in the last half century is staggering. It inevitably gets communicated throughout terrorist networks, making them far more efficient at killing our soldiers and civilians. In my humble view, and with great admiration for Justice Scalia’s fidelity to principle, the purist’s approach puts our troops at too much risk while the politicians dither.

Given the lives at stake, the Court should not be faulted for charting a different path. This is true particularly because the precedent on which it relies for doing so, Ex Parte Quirin (1942), expressly upheld the principle that citizens may be detained as enemy combatants–even if, as Scalia argues, Quirin “was not this Court’s finest hour.”

Rasul v. Bush

Another case not likely to be remembered on the Court’s highlight reel is Rasul v. Bush, portrayed at the conclusion of the predictably blistering Scalia dissent as “judicial adventurism of the worst sort.” Rasul could, if it unfolds to the full extent of its logic, become a profound blow to the capacity of the United States to conduct a successful war against a modern, international terrorist network. Perhaps equally alarming, Justice Stevens’s majority opinion (joined by Justices O’Connor, Souter, Ginsberg, and Breyer, with a concurrence from Justice Kennedy) exposes a widening gulf between what Americans once envisioned the judiciary to be and the much different and more threatening creature it is becoming.

The U.S. Constitution is a compact between a primary source of power, the people of the United States, and the government they created. It is not a treaty between the United States and the rest of the world–indeed, it explicitly presumes that the rest of the world will include enemies of the United States. (The only federal crime spelled out in the Constitution is treason, defined, in Article III, Section 3, to include conduct that “adher[es] to” or gives “Aid and Comfort” to “Enemies” of the United States.)

In the Framers’ ingenious construct, the courts of the United States are supposed to be a bulwark protecting members of the uniquely American community–i.e., citizens of the United States and those aliens who, by their lawful participation in our national life, have immersed themselves into the fabric of American society–from the excesses of an oppressive executive or a legislature insufficiently heedful of their fundamental rights. It is the institution that ensures the law and order a free people must have in order to thrive.

Nevertheless, as manifested in Rasul, yesterday’s case involving claims of foreign enemy combatants captured on faraway battlefields and held by the military in Guantanamo Bay, Cuba–an installation outside the jurisdiction of any U.S. court–the judiciary is no longer a neutral arbiter there to ensure that Americans get a fair shake from their government and its laws. Instead, it is evolving, or morphing, into a sort of United Nations with teeth. It has seized the mantle of international arbiter, ensuring that the world–including that part of it energetically trying to kill Americans–has a forum in which to press its case against the United States.

On September 11, 2001, the most atrocious foreign invasion in our history took place, killing 3000 of us. Far from the first attack, it was the copestone of eight years marked, roughly annually, by attempted or successful terrorist operations. Even after 9/11, the enemy has continued demonstrate stealth and prowess–although it has not succeeded in hitting the homeland, it has been responsible for spates of civilian slaughter throughout the world and killed a sizable number of our troops on the battlefield.

That describes the mortal peril United States was up against when the United States courts were presented with an extraordinary claim: viz., that when our military fighting overseas, at the height of active hostilities, grants quarter by apprehending rather than destroying the forces arrayed against it, those forces, those alien enemies trying to kill Americans–alien enemies who secrete themselves among civilians; who use humanitarian infrastructure like ambulances, hospitals and schools to carry out their grisly business; who make a mockery of the laws and conventions of civilized warfare; who torture and kill their captives with a bestiality that defies description; whose only contact with America is to regard her with this savagery–have resort to the courts of the United States to protest their detention and to compel the executive branch, while it is conducting battle, to explain itself. Just to describe this breathtaking claim of entitlement should be to refute it. Yet, the United States Supreme Court has ruled in favor of the enemy.

Of course, the Rasul majority didn’t put it just that way. It put on its we-are-the-world blinkers and unilaterally decreed that this was what its rarefied conception of due process demands: a process that assumes, to borrow an increasingly-apt phrase, that every organism on Planet Earth is an American waiting to happen, vested with fundamental rights–whether of constitutional, statutory, natural, or even international pedigree–accorded ever more generously by a society that is enlightened . . . and suicidal.

In such a place, there is no area–geographically or substantively–where the courts are not supreme. It is often said that the judicial function is to say what the law is, and the law, it turns out, is everywhere. What difference should it make that mere professional soldiers thought the people shooting at them were the enemy? It’s just not fair to leave it at that. It’s offensive to our bien pensant sensibilities that anyone could be really deemed an “enemy” until he’s had his day in court–that is, in our courts, against our government, in the middle of a war against us.

Bear in mind that we are not talking about one or two questionable cases. There are about 600 prisoners being held at Guantanamo Bay. In addition, because the Court’s decision does not set forth any real limiting principle that would confine its logic to Guantanamo Bay, there could be thousands of combatant prisoners in Afghanistan, Iraq, Bosnia, North Korea, or anyplace else on the globe where American forces are in harm’s way. Scalia’s dissent points out that in the last century there were over a million prisoners of war held at one time or another. The majority cannot conceivably think the military might have gotten it wrong every time–or even most of the time. They have to know they are necessarily opening our courts to our enemies, and that this must harm the war effort.

To arrive at its extraordinary result, the Court had to circumvent United States v. Eisentrager (1950), a case directly on point. There, the Court had declined to hear a habeas challenge from German nationals who had never set foot inside the United States and who sought to challenge their capture in China by U.S. forces, who there subjected them to military tribunals for war crimes. Justice Stevens accomplished this end-around–or at least convinced four other judges that he had–by two tortured routes.

First, to justify the aliens’ purported right to sue, he reasoned that cases after Eisentrager supported an inference that a statutory habeas challenge to detention might be available even if aliens could not claim a constitutional entitlement. Second, to justify the Court’s jurisdiction to hear such a challenge from foreigners whose relevant conduct and detention occur overseas, he surmised that even though Guantanamo Bay is not sovereign American territory it is under de facto American control, and therefore is functionally American territory to which the jurisdiction of the U.S. courts should extend.

Justice Scalia’s dissent illustrated the bankruptcy of these claims. The majority’s constitutional/statutory dichotomy is refuted by Eisentrager, which expressly rejected both as bases for an alien outside U.S. territory to seek habeas relief. More elementally, the plain text of the habeas statute (Title 28, U.S. Code, Section 2241) cannot sensibly be read as extending its force outside the territorial jurisdiction of the federal court to which a habeas claim is addressed.

To the extent that stricture might be seen as having been somewhat relaxed by the later case of Braden v. Kentucky (1973), Scalia explained that this was only to permit a U.S. citizen who was already inside the jurisdiction of the U.S. courts to file a habeas petition in a state different from the one in which he was being held–i.e., in Kentucky rather than Alabama (for the sensible reason that Kentucky’s criminal charge was the reason for the Alabama detention). Braden did not come close to overruling Eisentrager’s holding that an alien held outside U.S. jurisdiction had no statutory (or constitutional right) to file a habeas claim in a U.S. federal district where he was not being confined. Moreover, to the extent the habeas statute has sometimes been seen as creating a potential constitutional problem in that it would not literally permit an American citizen held outside U.S. territory to seek habeas corpus, that has nothing to do with aliens overseas, who are not vested with constitutional rights in the first instance.

Equally troubling, Scalia observed, was the majority’s (and, in concurrence, Justice Kennedy’s) eschewal of the legal reality that Guantanamo Bay is a sovereign part of Cuba, not the U.S.–a disregard all the more startling given the hyper-adherence to formality that induced the Court to avoid deciding the Padilla case (see above). If the venerable concept of sovereignty has been swept aside in favor of de facto control, what is to stop the courts from stretching their jurisdiction to anyplace on the globe where our military engages an enemy and controls territory or captives? Does every alien enemy combatant captured anywhere on earth now have access to the U.S. courts? Is every military prisoner entitled to force the executive branch to justify detention? It is hard to see why not under Rasul.

And so what if habeas procedures even more deferential to the executive than those adumbrated for citizens in the Hamdi case are fashioned for aliens in Rasul’s brave new world? How can it conceivably be appropriate to impose on our soldiers the burdens of stopping to collect evidence and write incident reports in the middle of fighting a war? Of course they do a measure of that now–after all, it is much in their interest correctly to sort out whom to hold and whom to release. But, until now, that has certainly not been done with the rigor anticipation of litigation will doubtless produce. It is not enough to say, hopefully, that U.S. courts will be indulgent given what’s involved. Empirically, judicial demands on governmental procedural compliance become steadily more demanding over time, and government naturally responds by being even more internally exacting to avoid problems. In no time flat, what was once thought a trifling inconvenience becomes a major expenditure–in this case one that will inevitably detract from the military mission which is the bedrock of our safety.

Most frightening of all: by what logical rationale should judicial oversight stop at detention? It may seem unfathomable now to envision a court prescribing due process standards for what to bomb, where to attack, how much latitude our warriors have to jeopardize civilian infrastructure, and the like. But I daresay that on September 12, 2001, most people would have thought it laughable to suggest that courts would declare unto themselves the power to review whether enemy forces may be detained to prevent them from rejoining the battle against our troops.

Rasul is a dangerous decision. Congress should slam the courthouse door on al Qaeda. Today.

Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is an NRO contributor. McCarthy is reachable through www.benadorassociates.com.


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