|
GIVEN his constitutional role as commander in chief, with principal responsibility
for the nation's security, the president might be expected to overreach
occasionally in times of war, to place the energetic defense of the country
ahead of the meticulous safeguarding of civil liberties. Equally, given its
constitutional role as guardian of the fundamental laws of the land, the
Supreme Court might be expected to patrol zealously the boundaries
established by the Constitution for the protection of individual liberty,
and occasionally even to go to an extreme to ensure that the executive
respects them. And as a consequence of the wartime contest between the
executive and the Court, as each seeks to advance the interests and uphold
the honor of its constitutional office, one could reasonably hope that both
national security and civil liberties would be given their due to the
extent possible.
On the basis of the Court's decisions in the enemy combatant detention
cases, handed down June 28, it is a pleasure to report that the system is
working more or less as designed. In waging the war on terror, the
executive branch has certainly pushed the legal limits of its prerogatives.
And the Supreme Court has responded, pushing back, at times quite
aggressively, in the opposite direction.
This is certainly not to suggest that the legal positions of the
administration have been ideal, or that in Hamdi
v. Rumsfeld, Rumsfeld
v. Padilla, and Rasul v. Bush
the Court achieved an optimal balance between national security and civil
liberties. To the contrary. The Bush administration, for example, suffered
self-inflicted wounds when it refused to grant the detainees at Guantanamo Bay
the adequate minimal process, well grounded in the laws of war, for
determining whether the government had correctly classified them as enemy
combatants. And in Rasul v. Bush a
provoked Court struck back. It ruled that noncitizen
or alien enemy combatants who have not set foot in the United
States and are detained outside of the
territorial jurisdiction of any U.S.
federal court nevertheless have a right to challenge their detentions in
any federal district court they please. Unfortunately, to reach this result
the Court distorted its own cases, arrogating to itself a scope of review
of military detentions it had not previously been thought to possess.
So, the Supreme Court now having spoken, there remains work to be done
in hammering out the proper balance between waging the present war
effectively and maintaining the rule of law scrupulously. This is
particularly challenging as the nation confronts a shadowy adversary, himself
ruthlessly indifferent to the distinction between lawful combatants and
civilian noncombatants, who has at his disposal or is bent on obtaining
weapons of great destructiveness. Still, the United
States is at war, and the constitutional
order holds.
Indeed, notwithstanding its overreaching, the Court's decisions
vindicated the core constitutional principle that there is no unreviewable executive power to detain individuals. To
be sure, in none of the cases did the government deny the right to due
process. What was at issue in all three was the degree of process due an
individual designated by the military, or the president directly, as an
enemy combatant. In essence, the government contended that it was enough to
assert facts that, if true, would warrant such a designation. And the Court
ruled, in sum, that individuals held as enemy combatants--whether citizens
or aliens, whether held in the United States
or abroad--had the right to challenge before an impartial tribunal the
factual allegations on the basis of which they had been captured and
incarcerated.
In Hamdi v. Rumsfeld,
the court struck the balance nicely. Seized on the battlefield in Afghanistan
in 2001, Yaser Esam Hamdi, a U.S.
citizen, has been detained in the United
States since April 2002 without formal
charges or proceedings. This was necessary, argued the Bush administration,
not only to prevent him from returning to fight with the enemy (the
internationally recognized justification for the detention of enemy
combatants) but also in order to subject him to extended interrogation that
could yield precious information concerning al Qaeda's
whereabouts, intentions, and capabilities. Hamdi's
court-appointed counsel countered that indefinite military detention
without charge or trial in a war that could last the detainee's lifetime
violated his Fifth and Fourteenth Amendment due process rights, in
particular the right of all persons detained in the United States to the
writ of habeas corpus, the legal means by which a detainee asks a court to
review the basis for his imprisonment.
Writing for a plurality and announcing the judgment of the Court,
Justice O'Connor recognized the force of both parties' arguments. Just as
there is no bar to holding a U.S.
citizen as an enemy combatant, she reasoned, so too being held as an enemy
combatant should not prohibit a U.S.
citizen from invoking his constitutional rights. While she rejected the
notion that a citizen held in the United States as an enemy combatant was
entitled to the full panoply of protections under the Constitution for
citizens charged with criminal conduct, Justice O'Connor did rule
that the government must give citizens alleged to be enemy combatants and
held in the United States "a meaningful opportunity to contest the
factual basis for that detention before a neutral decision maker."
The case of Jose Padilla, who came to the United
States in May 2002 allegedly to lay the
groundwork for a dirty bomb attack, presented an even stronger challenge to
indefinite military detention without charge or trial. Padilla not only is
a U.S.
citizen but also was seized on U.S.
soil. The Court, however, in a 5-4 opinion authored by Justice Rehnquist,
declined to rule on the merits on the grounds that Padilla had failed to
bring his challenge to the federal district court that had jurisdiction to
hear it and, in bringing the suit against Secretary of Defense Rumsfeld, had failed to identify the correct
respondent, namely, the commanding officer at the South Carolina Navy brig
in which he was imprisoned.
How strange, therefore, that the Court ruled in favor of the detainees
in Rasul v. Bush. In contrast to
Padilla, they were alien enemy combatants not citizens, held outside the United
States not inside the country, and they
filed suit against the president rather than the commander at Guantanamo Bay.
In fact, the Court seemed bent on sending a message to the administration
regardless of the settled law that it needed to trample to do so.
Contrary to University of Chicago
law professor Cass Sunstein, who argued in the New
York Times that the Court in Rasul
decided the issues before it in the "narrowest possible fashion,"
the Court reached its result by silently and tendentiously overruling the
controlling precedent. In Johnson v. Eisentrager
(1950), the Court held that it is a precondition for the filing of a writ
of habeas corpus by an alien detainee that he be held within the
territorial jurisdiction of a U.S.
court. In keeping with Eisentrager, the
Supreme Court might have narrowly ruled that the Guantanamo Bay
detainees have a right to challenge their detentions in U.S.
courts because U.S.
control over Guantanamo
Bay, by longstanding agreement
with Cuba,
amounts to in all but name the exercise of sovereignty. In fact, in a 6-3
decision written by Justice Stevens, the Court appears to have ruled,
extravagantly, that U.S. federal district courts may hear legal challenges
from alien enemy combatants at Guantanamo Bay
because U.S. courts have jurisdiction wherever the U.S. military holds
foreign enemy combatants inasmuch as U.S. courts have jurisdiction over the
secretary of defense and his boss, the president.
The constitutional contest between the executive and the judiciary over
how to balance the competing claims of security and liberty is by design
perennial. At the same time, and also by design, there is only so much the
executive and the judiciary, given their limited powers, can accomplish. It
would be welcome, therefore, in the next round for the third branch,
Congress, to step in and clarify not only the jurisdiction of federal
courts in the case of alien enemy combatants held abroad, but also the
details of the procedural protections due citizens wherever they are held
as enemy combatants. Both the circumstances and the constitutional system call
for this.
Peter Berkowitz teaches at George
Mason University
School of Law and
is a fellow at Stanford's Hoover
Institution.
|
