The Supreme Court's Terrorism Cases:
By MARCI HAMILTON
Thursday, Jul. 01, 2004
Recently, the Supreme Court handed down two important end-of-Term decisions affecting the war on terror. (It also dismissed another "war on terror" decision on procedural grounds.)
In this column, I will discuss both the results the Court reached in each case, and the import of its decisions, taken together. I will argue that these cases, taken together prove two things: First, the system works. Second, constitutional jurisprudence must be context-dependent for it to make any sense.
The Bottom Line: The Results in the Three "War on Terrorism" Cases
In Rasul v. Bush, a clear majority of the Court held that the noncitizen detainees at Guantanamo Bay United States Naval Base, Cuba have the right to file habeas corpus petitions in the federal courts to challenge the legality of their detention. The Solicitor General's Office had argued that no such right existed.
In Hamdi v. Rumsfeld, a majority of Justices - in a plurality opinion, and a concurrence - clarified the status of American citizen Yaser Hamdi. Hamdi was seized overseas and held for over two years without access to the courts. The Administration deems him an "enemy combatant." The Court held that Hamdi's detention was proper, and he may continue to be detained. But it also held that Hamdi has the due process right to challenge the government's claimed justification for his detention before a neutral decisionmaker.
Together, these two cases stand for the proposition that detainees on American soil or holdings must be given an opportunity to contest the legality of their detention.
The third case, Rumsfeld v. Padilla, addressed the situation of Jose Padilla. Like Hamdi, Padilla is a U.S. citizen who has been labeled an "enemy combatant" in the war on terror. Unlike Hamdi, however, Padilla was arrested in the U.S., not abroad. The Padilla case asked whether he had a right to go to federal court to contest the legality of his detention. Here, the Court did not reach the merits, because it found that Padilla had filed his lawsuit in the wrong federal district court. But presumably, when Padilla refiles his case in the correct court, it is hard to believe the result will be any different for Padilla than it was for Hamdi and the detainees.
These cases illustrated the wisdom and adaptability of our constitutional system. In them, the Executive and the Judiciary acted precisely as the Framers would have expected: The Executive Branch took needed emergency measures, and the Judiciary dispassionately reviewed these measures with care.
What the Executive Did Right: Act Rapidly In An Emergency
One of the Executive's roles is to be able to act expeditiously in emergencies. Neither the lumbering Congress with all its members, nor the courts with all their careful review, can provide the quick, unilateral action sometimes needed in times of emergency. As Alexander Hamilton said in Federalist No. 70, "Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks. . ." In response to the greatest emergency within our continental borders ever, the Bush Administration mobilized to do what needed to be done as quickly as possible.
The United States government fundamentally did not understand terrorism before 9/11, and the learning curve was Everest-like in the days, weeks, and months following the attacks. Terrorists violate the vast majority of the moral principles that unite Americans, so learning how to deal with them required an enormous stretch of all of our resources.
Apparently, the Administration believed it could not risk releasing terror war detainees anywhere beyond tight military control. In other words, they could not be charged and put before federal courts, as ordinary criminals would. Nor could they be put quickly before military tribunals, as might be appropriate in other circumstances.
It is a natural instinct to want to isolate a terrorist when one fears that if the terrorist has the opportunity to scratch his nose on television, another 9/11 will be ignited. And in those early days, we were all waiting for the next one.
In sum, the Administration's responses to these three lawsuits show the Executive in classic posture: responding quickly and efficiently to an emergency.
What the Judiciary Did Right: Apply Calm Logic And Vindicate Rights
But the problem with quick, unilateral power - such as that of the Executive -- is that it is so easy to exercise it arbitrarily. Thus, George Mason reasoned at the Convention, "Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen." That is why the other two branches exist - to provide checks that ensure careful consideration, fairness, and attention to constitutional rights.
The other branches proceed more slowly. Consider the Supreme Court. It considered these cases on its regular calendar, held typical oral arguments, and generally, took the time it needed in order to get the decision right. It was deliberative, even contemplative; and it looked to a very different horizon--one of law, doctrine, and historical precedent--than the Executive, which focused on 9/11.
That was the right thing to do. Because these decisions were so important, they demanded careful consideration and wide ranging considerations. The Justices had to ask how this ruling would affect other cases, other rights, and the courts. After all, this ruling will be the final word in the United States - until and unless these cases are overruled, limited, or modified - on questions involving fundamental liberties.
The Court was also right to deliberate not only carefully, but independently. On a number of questions - for instance, "Who is an 'enemy combatant'?" - the Administration sought total deference. But the Court refused to acquiesce. It held that courts (and, in dictum, military tribunals) could examine the Executive's justifications for detentions to see if they were unsustainably arbitrary.
Context Must Matter When the Question Is the Wartime Power of the Executive
The first lesson of the terrorism cases, then, is that our Constitutional system works, with the Executive and Judiciary playing their proper roles--even after extraordinary pressures. The second lesson is that when it comes to issues of the wartime powers of the Executive, context is crucial.
In recent weeks, we have seen how radically far the Department of Justice (usually the level-headed, steely-eyed lawyer for the Executive branch) and the DOJ's Office of Legal Counsel (usually the equally level-headed lawyer for the Presidency) believed they needed to go after 9/11.
Judge Jay Bybee and Professor John Yoo crafted memos regarding the legal limits on torture that now, in retrospect, seem to have pushed those limits too far. These are honorable men. They were not bloodthirsty. Rather, they were trying to think as far outside the box as possible--the Executive's duty in such times.
To some degree, the DOJ may have lost its moorings post-9/11. But the times were so extraordinary that all moorings were temporarily displaced, and I would hesitate to cast stones in its direction. Bybee and Yoo were assuming the necessity of extreme Executive action to protect the United States. And they were investigating whether there could be a legal justification to protect the U.S. when it took necessarily extreme steps in response to extreme dangers.
Now, almost three years after 9/11, with no more domestic attacks in the U.S., the felt necessity has dissipated to a degree and the question has changed. Thus, the Court was able to have a different perspective than the one Bybee and Yoo felt compelled to take. The question was no longer, "What are the ultimate limits of Executive power when it becomes necessary to take extreme measures to protect United States interests?" Now, it was "To what degree are we willing to give up some liberties in order to fight terrorists who intend to deprive us of life?"
So far, 9/11 has been a solitary event when it comes to America itself - though bombings of allies, such as the Madrid bombings, have also been horrifying. And without a string of terrorist attacks pushing us to our very limits, Americans -- including the Court - properly have retained reservations about discarding certain principles that undergird the rule of law.
An Administration Blunder: Defending Indefinite Detention Without Judicial Review
One of those principles holds that a person cannot be held indefinitely at the whim of the Executive, without recourse to some means of review of the facts on which his detention is based. The Kafkaesque nightmare of indefinite detention without review has been the hallmark of fascist systems - not of the United States.
In light of this reality, the Administration blundered when it decided to submit briefs defending indefinite detention without review. Indefinite detention without a trial on the merits is constitutionally suspect enough, by itself. Keeping detainees in what amounts to a black box, with no judicial oversight, is beyond the pale--at least where there is no imminent threat of extreme danger.
Justice O'Connor's opinion for the four-Justice plurality in Hamdi, captured this crucial principle. As O'Connor wrote, "Striking the proper constitutional balance here is of great importance to the nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship."
In contrast, Justice Scalia believes that it is nonsensical to talk about balancing constitutional rights against necessity, or to be willing to abandon some liberties for life. But his view, I believe, is a fundamental misunderstanding of the spirit of the Constitution.
It's important to remember that the protection of life actually precedes that of liberty in the Fifth and Fourteenth Amendments. One can hardly argue that the government is required to put citizens at risk of terrorist attack in order to serve liberty. After all, when life is dramatically at risk, liberty is inherently diminished. Thus, context and balancing are inevitable features of the constitutional order.
Post-9/11 Normalization: Considering Rights As Well as Powers
As much as the Court's "war on terror" cases were about legal principles, they were also about adjustment and normalization following 9/11. It is heartening that the Court was, in the end, unpersuaded by the Executive's claim that it must have the unilateral powers it had arrogated to itself because we are in the midst of the war on terror.
The war on terror doubtless made the Court's decisions difficult ones, which is evident from the fractured nature of the decisions in the Hamdi case. It will take decades, if not centuries, to judge how much Executive power was actually warranted now - and to what extent that power should not be checked by the courts, as the Bush Administration has claimed. In the end, we simply do not have a definitive answer to the question whether the Bush Administration or the Court was factually right this time.
If the war on terror exists as long as many are now predicting, Hamdi and Rasul are only initial rulings in a particular context. If there is another tragedy within our borders that is comparable to 9/11, doubtless these decisions will be revisited.
Note: For information on the attorneys involved in the "war on terrorism" cases, check the West Legal Directory links in the relevant opinions, which are linked above. - Ed.