The Bush Administration's Biggest Legal Setbacks To Date in the War on Terror,
And What They Tell Us

On December 18, within the span of a few hours, two very significant federal appellate rulings came down -- each repudiating the Bush Administration's treatment of persons whom the government has detained in the war on terror.

In the first case, the United States Court of Appeals for the Second Circuit considered the case of Jose Padilla -- an American citizen arrested on American soil (Chicago's O'Hare airport) for alleged terrorist planning activities (relating to possible "dirty" bombs). The Second Circuit ruled, in Padilla v. Rumsfeld, that the Administration could not treat Padilla as a so-called "enemy combatant," but instead had to process Padilla through the normal federal criminal channels.

The result will be that the government can no longer hold Padilla in the military brig where he has been for the past eighteen months, and that it must allow him to consult with an attorney, and provide one if he cannot afford one.

The Second Circuit's ruling in the Padilla case explicitly did not cover non-U.S. citizens who have been captured outside of the United States - such as those foreigners captured in Afghanistan and currently being held in Guantanamo. Nonetheless, the ruling was important enough that the Justice Department immediately indicated it would seek higher review.

In the second case, the United States Court of Appeals for the Ninth Circuit did explicitly address the situation of non-U.S. citizens who have been detained abroad - in particular, the Guantanamo detainees. The Ninth Circuit ruled, in Gherebi v. Bush, that these detainees could pursue habeas corpus actions in federal court in the United States to challenge the legality of their continued detention. This was an especially significant decision in that without the ability to file habeas corpus petitions, the detainees would likely have no forum at all in which to raise their constitutional complaints.

In November, the Supreme Court decided to address this very issue when it granted certiorari from consolidated cases coming from the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit had come out opposite to the way the Ninth Circuit ruled on the availability of habeas review.

Although the incredibly close timing of the Second and Ninth Circuit decisions is no doubt a fluke, their emergence together at this general moment is hardly pure happenstance, and instead highlights a number of important trends that are present as the war on terror moves into the judicial theatre.

First, these decisions indicate that the important litigations challenging various federal policies are beginning to mature, procedurally.

Shortly after 9/11 and the military action in Afghanistan, there was a period where courts understandably adopted a kind of "wait and see" attitude to the federal government's actions. Not wanting to unduly influence the dynamics unfolding between Congress, the President and the American people, judges found ways to dispose of the earliest lawsuits without addressing the hard legal issues by, for example, focusing on justiciability hurdles such as standing and ripeness. (The doctrine of "standing" limits court access to only certain persons, and the doctrine of "ripeness" limits review only to certain time periods.)

But by now, the "lag time" between political crisis and appellate court rulings seems to have elapsed. Notably, both the Second and the Ninth Circuit majorities appeared to have little trouble brushing aside some thorny threshold questions - such as whether the Secretary of Defense is an appropriate defendant in a habeas action and whether he is suable outside of Washington DC - in order to allow meaningful judicial review of the federal government's detention activities. Inevitably, this means the Supreme Court will begin to decide a number of important cases, with the DC Circuit cases on which review was granted last month being only the first.

Second, it is not surprising that the Second and the Ninth Circuits have taken the lead here. As I have written before, these are the two circuits whose ideological makeups may be most different from the Supreme Court's, and the Administration's. Last week's rulings are the most serious appellate setbacks for the President in his prosecution of the war on terror, and that they come from these two coastal circuits shouldn't have shocked close observers. Still, it is easy to exaggerate these characterizations about the Second and Ninth Circuits. For example, both decisions last week were 2-1. And in the Ninth Circuit case the dissenter was a very thoughtful Ninth Circuit jurist, and one member of the two-person majority was a senior district court judge sitting by designation, so that the vote by Ninth Circuit judges was really 1-1. (This itself raises an important question about judicial administration - whether it is appropriate that important circuit law effectively gets made by judges who are not part of the Circuit.)

Third, and most important, the Second and Ninth Circuit rulings illustrate two of the most fundamental, and recurring, constitutional questions that have been implicated by America's response to September 11^th - executive unilateralism, and basic due process.

The federal government's actions over the past two years have, to be sure, implicated a wide range of constitutional rights and values, including bodily and informational privacy, as well as racial, religious and political equality. As troubling as some government policies may be in their intrusion in these areas, to my mind one of the deepest constitutional problems has concerned the Administration's pattern of implementing controversial policies unilaterally, that is, without involving members of Congress.

Indeed, two of the policies that most burden privacy, speech and equality - the Administration's announced practice of eavesdropping on attorney client conversations (to which I devoted a column), and the FBI's revised regulations concerning surveillance of political and religious gatherings (about which I wrote another column) - were both accomplished without Congressional consultation or approval. And that was one of their most troubling features. If the American people collectively decide to sacrifice some of their privacy and subject themselves to equal surveillance and questioning, so be it. But I for one want there to be a national consensus demonstrated by Congressional backing, and not just executive fiat.

That is why the Second Circuit ruling is so interesting. The court did not rule that the federal government could never treat one of its own citizens captured at home as an enemy combatant; instead, it held at a minimum that the President could not do so without Congressional authorization. The court pointed out that ever since the famous Steel Seizure case from the 1950s, how broad the President's powers are at home depends very much on how broadly Congress has authorized or approved his actions. And, according to the Second Circuit, Congress had not licensed the President to remove persons like Padilla from the normal federal criminal system.

In the end, then, the Second Circuit addressed the fundamental allocation of constitutional powers between the various federal branches. Although at first blush the case seemed to be about Mr. Padilla's individual rights, it ended up focusing more on issues of governmental power distribution.

The Ninth Circuit case, too, focused on a fundamental constitutional issue. But this time, individual rights were front and center. The Ninth Circuit's message was clear: Even where there is broad consensus among the Congress and the President to do something, courts have to ensure that individuals are treated fairly and justly. Basic due process abides, for citizens and non-citizens alike.

As my fellow columnist Eddie Lazarus wrote last month (when the Supreme Court granted review in the DC Circuit case), the position the Administration is taking concerning the Cuban detainees is extraordinary. In essence, the President argues that no tribunal, anywhere, can require the federal government to provide any process, whatsoever, to these detainees.

It may well be that it is fair and just to detain these Guantanamo individuals indefinitely without ever charging them with a crime, just as we detained prisoners of war during World War II until it was safe to let them go free. After all, the vast majority of these detainees took up arms against American troops.

But what about the minority who perhaps did not? What about the few persons who may simply have been in the wrong place at the wrong time? What about the few persons who may have been wrongfully accused by Afghan natives as being members of the Taliban or Al Qaeda? Don't these persons even deserve a chance to explain that they aren't dangerous to Americans?

Granted, we may not believe their explanations, and may continue to hold them because we distrust them. But the Administration is not arguing that the process afforded them should be deferential to the government. Or that the standard of proof for release should be set high to prevent erroneous release of dangerous persons. Rather, the government is arguing that there is no forum in which they have a right to be heard at all anytime soon. And that is the argument that the Ninth Circuit (correctly, to my mind) rejected.

I hope the Supreme Court will reject this absolutist position (and in so doing distinguish the World War II-era cases on which the government relies, because in those cases there was some process afforded - a military forum - in which individuals were heard.)

However the Supreme Court comes out next Spring, there is no doubt that we are entering a new phase in our campaign against terror. And in this new phase, the federal judiciary - the so-called "least dangerous branch" - may end up being the most important.