Rejecting the All-or-Nothing Approach in the Moussaoui Case and the Guantanamo Detainees Oral Argument

By MICHAEL C. DORF

Wednesday, Apr. 28, 2004

In two cases last week, the federal courts appeared to reject the Bush Administration's contentions that national security requires that civil liberties be entrusted to the Executive Branch during wartime.

The first case was Rasul v. Bush and Al Odah v. United States. Last week, during oral argument in the Supreme Court, most of the Justices seemed dubious that prisoners at Guantanamo Bay Naval Base could be completely denied access to civilian courts.

The second case was that of the alleged "twentieth hijacker," Zacarias Moussaoui. A federal district judge had held that Moussaoui's Sixth Amendment right to call witnesses entitles him to introduce some exculpatory evidence obtained by the United States from suspected foreign terrorists currently in U.S. custody. Last week, a three-judge panel of the Fourth Circuit Court of Appeals largely agreed.

If there was a common theme in the Supreme Court and the Fourth Circuit, it was an emphasis on pragmatic compromise--and rightly so. The striking of a balance between security and liberty may seem like the obvious role of the courts in troubled times. Yet much of the debate over civil liberties in wartime has, to this point, been framed in all-or-nothing terms. Against that backdrop, the courts' efforts to find a middle course are welcome.

The Guantanamo Bay Case: Justices Suggest a New Interpretation of Precedent

By treaty, the United States holds a permanent lease on Guantanamo Bay, while Cuba remains nominally sovereign. The issue in Rasul and Al Odah is whether, given these facts, the naval base at Guantanamo Bay is U.S. or foreign territory.

Prior to this week's oral argument, it was generally understood that if Guantanamo were held to be foreign territory, that would be the end of the matter. That was because most observers had interpreted a 1950 Supreme Court precedent, Johnson v. Eisentrager, to mean that a nonresident alien enemy who has not been held within U.S. territory has no right of access to U.S. civilian courts.

However, during last week's oral argument, several Justices hinted at a different reading of the case: They suggested that Eisentrager permitted the enemy aliens--there, Germans captured in China at the end of World War II--to bring suit, but rejected their claims on the merits. That interpretation would suggest, then, that the Guantanamo detainees have the right to court access even if Guantanamo is held to be foreign territory.

Is the Justices' Proposed Interpretation of Eisentrager Tenable?

The Justices' reading of Eisentrager is, in my view, plausible but strained .

The best evidence for the new view comes from the conclusion of Justice Jackson's opinion for the Court in Eisentrager: "We are unable to find that the petition alleges any fact showing lack of jurisdiction in the military authorities to accuse, try and condemn these prisoners or that they acted in excess of their lawful powers." That language suggests that, if the prisoners had alleged different facts, they might have been entitled to a writ of habeas corpus from a civilian court. And to that extent, it therefore supports the Justices' reading.

But most of the rest of the opinion speaks in categorical terms, denying that the prisoners had "standing" to sue in light of their location.

Of course, Eisentrager is one case from over a half century ago; the Supreme Court may well want to diverge from, modify, or even overrule it. In the end, the Court must decide what rule makes sense going forward. And in that respect, the questions posed at oral argument are encouraging.

The Problem with the Detainees' Argument

The basic problem with the argument on behalf of the detainees in Rasul and Al Odah is that it leads to perverse consequences.

To see why, suppose the petitioners prevail, and the Court rules that Guantanamo Bay should be deemed U.S. territory, so that the writ of habeas corpus is available for civilian courts to examine the lawfulness of persons held captive there.

Even given such a ruling, or government could still easily hold enemy combatants in custody without access to judicial review. To do so, it would simply dismantle the detention center at Guantanamo Bay and move it somewhere that is undoubtedly outside U.S. territory, such as a military base in Afghanistan, Iraq or South Korea.

What would be the point of a constitutional rule that encourages military authorities to hold prisoners in such relatively unsafe locations?

How the Justices Will Probably Avoid a Set of Perverse Consequences

Recognizing the perversity of such a rule, the Justices appear ready to say that at least for prisoners held outside a theater of active hostilities, location outside of U.S. territory does not strip the courts of the power to grant writs of habeas corpus. Under such a rule, even detentions at a military base in Iraq, Afghanistan or South Korea--as well as Guantanamo--would be reviewable in U.S. courts.

At the same time, however, the Justices also appear ready to say that as a matter of substantive law, the courts would grant great deference to the determination of military authorities that custody is lawful. If so, then the result might be that, while noncitizen prisoners held by the U.S. abroad would be able to seek court review, they would be unlikely to prevail on the merits of their cases.

The Moussaoui Case: Allowing The Defendant to Use Exculpatory Statements

Moussaoui faces terrorism charges in federal court. The government hopes to persuade a jury that Moussaoui--who was apprehended and imprisoned before September 11, 2001--was a conspirator in the evil plot of that fateful day. Moussaoui acknowledges membership in al Qaeda, but denies involvement in the September 11th plot.

Moussaoui claims a right under the Sixth Amendment to call as witnesses in his defense a number of other al Qaeda members currently in U.S. custody who, he says, would confirm his account. Last week's ruling by the Fourth Circuit held, among other things, that this right can be vindicated by introducing written accounts of the exculpatory statements the witnesses would provide if actually produced. (The ruling also resolves a number of complex issues and raises troubling questions addressed by Joanne Mariner in a column earlier this week.)

The government had argued that Moussaoui had no Sixth Amendment right to call witnesses outside of U.S. territory--relying, as in the Guantanamo case, on Eisentrager. But the Fourth Circuit rejected this categorical argument. It explained that while national security might be impaired by requiring the government to produce the witnesses in person, existing transcripts of their interrogations were fair game--at least when access was restricted to approved defense lawyers.

The Fourth Circuit staked out a middle ground. Not only did it reject the prosecution's contention that no right to call witnesses existed; it also rejected the defense's contention that if Moussaoui were denied access to the witnesses, his Sixth Amendment right could only be vindicated by dismissing the indictment. As long as statements--though not witnesses themselves--were provided, the court reasoned, the indictment against Moussaoui could still stand.

Accordingly, the court remanded to the trial judge with instructions on how to provide Moussaoui and the jury with access to the witnesses' statements, though not the witnesses themselves.

Avoiding Another Set of Perverse Consequences

As in the Guantanamo case, so too in the Moussaoui prosecution, fear of perverse consequences may have been at work.

Suppose that the court had granted the defense request, and had ordered the government either to produce the witnesses or dismiss the indictment. Surely the government would have dismissed the indictment. But Moussaoui's Sixth Amendment right would hardly be vindicated as a result. To the contrary, Moussaoui would end up with even fewer rights honored.

In a conventional prosecution, dismissal of the indictment means the defendant goes free. But Moussaoui's is not a conventional prosecution. It is a terrorism prosecution of a foreign national.

Thus, if the government were to drop the charges against Moussaoui, he would likely be remanded to military custody, probably at Guantanamo. There, he would either be held indefinitely or tried before a military tribunal with fewer procedural safeguards than are available in federal district court.

The Appeal of the All-or-Nothing Approach

If the balancing and compromises seemingly at work in last week's cases seem sensible, why has the discourse so far been dominated by an all-or-nothing approach?

It's easy to see why the government does not want conventional civil liberties to apply to cases arising out of its pursuit of terrorists. Emphasizing that the United States is currently waging actual wars in Afghanistan and Iraq as well as a metaphorical war on global terrorism, the Administration sees civil liberties as simply too costly. Tools like the presumption of innocence, the right to counsel, and the right to compulsory process for calling witnesses are, in the Administration's view, ill-suited to the battlefield--and in today's wars, that includes the home front.

Perhaps surprisingly, some civil libertarians share the Administration's view that sharp distinctions should be drawn between military and civilian procedures. These civil libertarians worry that when called upon to adjudicate cases involving terrorism, our civilian courts will be so obsessed with national security that they will suspend the ordinary protections of the civilian justice system--and that the compromises made in terrorism cases will gradually undermine the procedural protections of the civilian justice system in all cases. From the war on terrorism, they fear, our courts will fashion rules that are then transported to the "war" on drugs and crime more generally.

These civil libertarians are prepared to strike a kind of deal: Allow some cases to proceed with minimal judicial scrutiny outside of the civilian courts, but, if the Administration makes use of the civilian courts--as it did with John Walker Lindh and is doing with Moussaoui--then insist on the full panoply of procedural protections.

In this view, it would be better for Moussaoui simply to be held indefinitely in a military brig than to be tried in federal court with less than the full measure of access to exculpatory witnesses. At least if he's simply held in military custody, his case sets no precedent for the next alleged drug dealer or racketeer the government wants to prosecute based on evidence obtained from a confidential informant.

The Need for Compromise

The civil libertarians' urge to keep the civilian courts pure and uncorrupted by the messy compromises of military justice is understandable. Nevertheless, in sacrificing Moussaoui and perhaps American citizens such as Jose Padilla and Yaser Hamdi--whose cases the Supreme Court hears today--they risk striking a Faustian bargain.

Sadly, the war on terrorism is not likely to be a brief and passing phase of our national experience. We will face a terrorist threat for years to come, and as the numbers of people who are treated as outside the ordinary civilian justice system reaches into the thousands, it will become increasingly difficult to maintain that we are maintaining the "purity" of that system by anything other than an act of willful blindness.

Accordingly, if we care about the values that underlie our civilian justice system--especially the notion that people should not be imprisoned or executed except upon proof of their guilt after a fair opportunity for them to challenge the evidence against them--we will have to find a way for that system to face the challenges posed by the terrorism cases directly. Last week's oral argument in Washington and the Fourth Circuit's decision in Moussaoui suggest that our courts stand ready to accept that responsibility.


Michael C. Dorf is Professor of Law at Columbia University. His new book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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