ON SEPTEMBER 11, 2001, nineteen Muslim extremists hijacked four passenger planes and flew two of them into the Twin Towers of the World Trade Center in New York and the third into the Pentagon outside Washington, D.C. Passengers on the fourth plane, once they realized what had happened, overpowered the terrorists but lost their lives as the plane crashed in rural Pennsylvania. The assaults took 2,974 lives, mostly civilians and mainly Americans, but among the dead were nationals from more than ninety countries. The attack—the first foreign assault on American soil since World War II and the first on the mainland since the War of 1812—demanded action by the administration of George W. Bush, who had been elected less than a year earlier. The response included a war against al-Qaeda in Afghanistan, the invasion of Iraq, and a variety of measures designed to locate terrorists and their sympathizers in the United States. The last program raised a number of constitutional issues, most of which the administration chose to ignore; in some areas the government took actions contrary to the restraints that the Constitution specifically imposed on national authority. During much of this period Congress acted as a rubber stamp—often with many Democrats voting with the Republican majority—for presidential proposals; only the Supreme Court opposed the administration’s policies toward men the president labeled as “enemy combatants.”
Following the September 11 attacks, Attorney General John Ashcroft vowed that the federal government would use its full might and “every available statute” to hunt down and punish “the terrorists among us.” In a roundup conducted over the next month with wartime urgency and secrecy, the administration detained more than 1,200 people suspected of a variety of crimes, from violating immigration laws to being material witnesses to aiding the enemy. As it turned out, with the exception of a small percentage who had violated immigration laws, most of the people seized had done nothing, but it took the government nearly a year before it released more than 1,000 of the detainees.
The arrests, however, spawned dozens of lawsuits in the lower federal courts, with Ashcroft and federal prosecutors on one side arguing that the war powers of the president trumped any civil liberties protections of the Bill of Rights, while a combination of public defenders, immigration lawyers, civil libertarians, and constitutional scholars argued just the opposite, that while civilian courts remain open—as they surely were in this country—then the Constitution remained in effect.
There were three major groupings of cases. First, people held primarily for violation of the immigration laws objected to new rules requiring their cases to be heard in secret, and broadened their arguments into an attack on what they claimed was unconstitutional preventive detention. Second, people jailed as material witnesses, because the government believed they had information about terrorist plots, argued that they should not have been held in order to give grand jury testimony, since that had not been the practice in any other type of criminal case. Third, Yaser Esam Hamdi and José Padilla, whom the administration labeled “enemy combatants,” sought what they claimed to be the fundamental rights of Americans, such as representation by a lawyer and being able to challenge their detention before a civilian judge.
Ten days after the September 11 attacks, Judge Michael J. Creppy, the nation’s chief immigration judge, issued sweeping instructions to hundreds of magistrates around the country regarding “special interest” immigration cases. “Each of these cases is to be heard separately from all other cases on the docket,” Creppy ordered. “The courtroom must be closed for these cases—no visitors, no family, and no press.” Then in an absolutely Orwellian line, he wrote, “This restriction includes confirming or denying whether such a case is on the docket.” Although the administration refused to explain how it decided which cases would be tried in this manner, it turned out that all of them involved Arab and Muslim men detained in a fairly haphazard manner. They had not been arrested for terrorist activities but had been picked up for traffic violations or tips from neighbors before September 11.
On August 27, 2002, a federal appeals court ruled that the press and the public must be allowed to witness immigration hearings, and strongly rebuked the Bush administration for its secrecy policy. A three-judge panel of the Court of Appeals for the Sixth Circuit in Cincinnati held that the news media and ordinary citizens have a constitutional “right of access.” The executive branch “seeks to uproot people’s lives, outside the public eye, and behind a closed door,” wrote Senior Judge Damon J. Keith. “Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately in deportation proceedings.”
Although the government said it would appeal the ruling, it did not, since it recognized that it most likely would have lost. Moreover, in unrelated immigration cases, the Supreme Court indicated that it would not look favorably on the administration policy. In Demore v. Kim (2003), for example, the justices by a 5–4 vote held that legal aliens who commit certain crimes can be imprisoned pending their deportation hearings; however, by a separate 6–3 vote, they ruled that federal courts have jurisdiction to review a congressional statute in the context of a habeas corpus petition filed by someone detained under it. The case dealt with one aspect of the 1996 Illegal Immigration Reform and Immigration Responsibility Act, and the persons detained were not being held for terrorist activities. But the decision did allow the government to hold suspected terrorists in jail pending deportation or other criminal hearings, albeit openly, and with the prisoner having the right to file a habeas petition.
The administration faced another rebuff in a non-terrorist-related case when the Court refused to take on appeal Snyder v. Rosales-Garcia (2003). The Court of Appeals for the Sixth Circuit sided with Mario Rosales-Garcia and Reynero Carballo, two Cuban nationals first detained in 1980 as they tried to enter the United States. They had at the time been deemed excludable—that is, ineligible to seek asylum—and jailed, but were at times released on parole, during which they accumulated criminal records in the United States, primarily for drug and burglary charges. The government revoked their paroles and sought to deport them, but because Cuba would not accept them, they had been detained indefinitely by the Immigration and Naturalization Service (INS).
Their habeas petition received a boost following the Supreme Court decision in Zadvydas v. Davis (2001), which held that permanent resident aliens could not be kept in prison longer than six months while efforts were made to find a country that would receive them. Although the government argued in Snyder that the class of immigrants in Zadvydas differed from excludable persons, the Sixth Circuit found that “excludable aliens—like all aliens—are clearly protected by the due process clauses of the Fifth and Fourteenth Amendments.”
Since this case touched directly upon the Bush administration’s policy of detaining people indefinitely without hearings, the Justice Department immediately asked the high court to review the Sixth Circuit decision, but apparently all nine justices agreed to leave the lower court ruling in place, and the Snyder ruling held.
The most notorious of all the terrorism cases involved Zacarias Moussaoui, a French citizen who had been arrested prior to September 11 but then charged with a terrorism-related crime: he allegedly would have been the replacement for the twentieth hijacker. (Since three of the four planes had five hijackers, it was assumed that one additional hijacker was missing from the fourth plane.) French authorities had monitored Moussaoui ever since 1996, when he had been observed meeting with Islamic extremists in London. He had traveled to Malaysia in 2000, and there had allegedly received terrorist training and become part of the 9/11 plot. He then entered the United States on a student visa, and between February and May 2001 attended flight-training courses in Norman, Oklahoma. Although he flunked out of the program and never flew solo, he met with two of the men who piloted the planes into the Twin Towers.
Moussaoui demanded, as a constitutional right, to be allowed to question a senior al-Qaeda leader held in U.S. custody, on the grounds that the man’s testimony would clear him of terrorism charges. The government refused to allow Moussaoui to contact the man, Ramzi Binalshibh, through a video hookup to Guantánamo Base in Cuba, where Binalshibh was being held incommunicado. “The damage to the United States will be immediate and irreparable,” argued then–assistant attorney general Michael Chertoff, but he was unable to convince U.S. District Judge Leonie Brinkema, who agreed with Moussaoui’s attorneys that he could not receive a fair trial without full access to an accused fellow terrorist he said could help disprove the government’s claim.
The government proved no more able to convince a federal appeals court than it had Judge Brinkema. The Court of Appeals for the Fourth Circuit dismissed the appeal on jurisdictional grounds, throwing the case back to the district court, where unless the government had agreed to allow access, the entire case against Moussaoui might well have been thrown out. The proceedings then took a bizarre turn, with Moussaoui insisting on representing himself, pleading first guilty, then recanting, then admitting that he was part of an al-Qaeda plot—not of the 9/11 events but of an attack that would come later. In May 2006 a jury found him guilty of multiple acts of terrorism, and the judge sentenced him to six consecutive life sentences.
The Moussaoui case was not the only one in which the administration had been pulled up short by the courts. A federal magistrate in northern Virginia ordered the government to release from custody four men accused of having links to a Kashmiri terrorist group until their trials. Judge T. Rawles Jones Jr. said the government had not convinced him that the men posed any danger to the community or a risk of fleeing before their trial, and he also raised doubts about the government’s case against them. In New York, Judge Michael B. Mukasey dressed down then–deputy solicitor general Paul Clement for asking the court without good reason to reconsider an earlier ruling that enemy combatant José Padilla—an American citizen whose case would later play an important role—could consult with counsel to discuss his petition for a writ of habeas corpus. The administration had argued here, as it would in all of the terrorism cases, that captured enemy fighters—even American citizens—were not entitled to the protections afforded to defendants in criminal cases in regular civilian courts. The most difficult issues, however, arose with respect to so-called “enemy combatants” captured in Afghanistan and Iraq, and then detained at the U.S. naval base at Guantánamo, Cuba.
In his book on civil liberties in wartime, All the Laws but One, Chief Justice William Rehnquist wrote that when bullets fly, “laws speak with a somewhat different voice.” Traditionally, when the nation had been at war, the courts had been unusually—some would say excessively—deferential to the policymaking prerogatives of the executive and legislative branches. Normally, the high court would not hear a challenge to wartime actions until after the end of the fighting, unless requested to do so by the administration. To take a few examples, the Court did not rule on the constitutionality of price-fixing until after the end of World War I, but it expedited a review of the draft act, since the Wilson administration had to be certain of its constitutional authority in this area. In the Second World War it upheld the wartime exclusion of Japanese Americans from the West Coast and their forced relocation into detention camps. The war on terror, however, is a different kind of war, and as a result the courts do not have the luxury of postponing decisions until after the fighting has stopped. In the war on terror the fighting may never stop, so courts will have to rule on constitutional questions when they arise, and hope that their decisions will have no adverse repercussions on war-related policies.
When the Bush administration began hostilities against al-Qaeda and the Taliban in Afghanistan and then later attacked Iraq, the army captured prisoners, and the administration labeled a number of them as “enemy combatants.” Traditionally, that term refers to members of the armed forces of a state with which another state is at war. When they are captured, they are considered prisoners of war and their treatment is defined under a series of Geneva Agreements to which the United States is a signatory. But since the war on terror is not directed against another state but an entity, al-Qaeda, and the prisoners were not part of an official military force, the Bush administration decided that they would not be treated as prisoners of war (POWs), but rather held incommunicado and without redress to American courts, even if they were American citizens. In 2001 international law defined how POWs were to be treated, but since the Bush administration refused to define captured fighters as POWs, they needed another label and a policy of how to treat them.
On November 26, 2002, the general counsel of the Defense Department defined “enemy combatant” as “an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict.” The term included “a member, agent, or associate of al-Qaeda or the Taliban”—a description so broad it could include even noncombatants. The Defense Department relied on a single Supreme Court decision to justify its policy, Ex parte Quirin (1942), the case involving Nazi saboteurs who landed on Long Island with the intent of attacking American munitions plants, and who were almost immediately arrested. After a military tribunal found them guilty and ordered them executed, their military lawyers took an appeal to the Supreme Court. It heard the case and confirmed the judgment. In the opinion, Chief Justice Harlan Fiske Stone defined enemy combatants as “citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance, and direction enter this country bent on hostile acts.” The definition included foreign nationals as well as U.S. citizens. The Bush administration insisted that American citizens could also be held incommunicado, and relied on the war powers granted to the president by Congress for justification.
Although the Nazi saboteurs had been tried by a military tribunal, the army had assigned them lawyers, and those lawyers had been able to take an appeal to the Supreme Court. The Bush administration, on the other hand, intended that there be no trial for the new enemy combatants, and no access to lawyers. Had the administration treated the foreign nationals as prisoners of war there would have been no expectation of a trial, but the war on terror is unlike conventional wars. In a regular war, even one that lasts several years, prisoners on both sides assume that when an armistice or a peace treaty is signed, they will be repatriated. Their time in a prison camp may be indefinite, but it is determined by the length of the war itself. The war on terror, however, as nearly everyone agrees, will not have a defined ending. There will be no peace treaty, and since it is not waged between armies, will involve civilian groups both as terrorists and as victims. To rule that prisoners accused of terrorism can be held incommunicado, and indefinitely, without any chance of proving themselves innocent of the charges against them, flies in the face of centuries of Anglo-American legal and constitutional tradition. Cases attacking this policy began almost immediately, with a majority of the lower courts ruling that the administration had exceeded its authority even under the war powers. The first of these cases reached the Supreme Court in 2004, despite strong efforts by the Justice Department to prevent any courts from hearing them.
It was inconceivable that the judiciary would allow itself to be cut out of a process that involved at heart the most cherished of American rights. Civil libertarians had denounced the Bush administration for gross violations of basic human rights, while its supporters claimed that the Bush position had been “far more modest and restrained than the actions of the Lincoln and [Franklin] Roosevelt administrations.” John Yoo, a member of the Bush Justice Department from 2001 to 2003, argued that “the government is by no means pushing the envelope.” Whether one agreed with the civil libertarians or with the administration’s defenders, however, one could not doubt that at some point these issues would be decided in court.
Ironically, when civil libertarians first began warning about the rights of captured enemy combatants, one member of the Bush administration took action to investigate. Defense Secretary Donald Rumsfeld convened a panel of constitutional lawyers aware of the wartime mistakes of previous presidents, and they helped draft a policy that gave accused noncitizens the right to counsel before military tribunals, a public trial, appellate review, and other protections embodied in the Uniform Code of Military Justice. Then–attorney general John Ashcroft, who of all recent holders of that position had been least interested in protecting civil liberties, dug in his heels, refused to accept the policy, and went further to condemn civil libertarians for aiding the terrorists. The confrontation in the courts might easily have been avoided if Ashcroft had paid attention to the proposed policy instead of ignoring it.
Two of the cases, Rasul v. Bush and Al Odah v. United States, arose from the detainees kept at the Guantánamo Naval Base in Cuba. During the Spanish-American War of 1898, the U.S. Navy attacking Santiago, Cuba, needed shelter during the summer hurricane season, and chose Guantánamo Harbor on the southeastern part of the island, a large natural harbor surrounded by steep hills. Following the war the United States declared that it had no territorial ambitions to control Cuba, but the 1903 Cuban-American Treaty granted the United States a perpetual lease of the area. The Cuban government today insists that the treaty was procured by force and that continued American occupation is illegal. The naval base there has a brig, or prison, and this suited the needs of the Bush administration lawyers perfectly since, they believed, Guantánamo was not U.S. territory, and therefore beyond the reach of constitutional requirements.
This was not a new argument, and had been played out in the Supreme Court over a century earlier in the so-called Insular Cases, which held that the Constitution did not necessarily “follow the flag”—that is, extend to areas outside the United States but under American control. The government claimed that the Court had no business even ruling on the legality of detaining aliens captured abroad at a base that is outside U.S. sovereign territory. Solicitor General Theodore Olsen’s brief even complained about “judicial interference with military affairs” and the “truly dangerous precedent of judicial second-guessing of quintessentially military decisions.” Although the Court had in previous cases paid great attention to the impact of international accords and treaties such as the Geneva Convention, Olsen brushed them aside and denied that the administration had any obligation under international law to give the Guantánamo detainees access to the courts. “Our government reserves that judgment to the political branches which, unlike the courts, may be held politically accountable for that judgment,” he said.
In essence, the administration did not ask that the Court uphold its position, but said that the Court had no authority even to hear the case. Given how strenuously the Rehnquist Court had argued that the high court—and not the political branches—is the ultimate interpreter of the Constitution, some commentators saw this as practically waving a red flag at the justices to provoke them.
The government had a subtler and even more problematic position to defend in the cases of Yaser Esam Hamdi and José Padilla, both U.S. citizens designated as enemy combatants. Hamdi was born in 1980 to Saudi Arabian parents in Baton Rouge, Louisiana, and as a child he left the United States with his parents to live in Saudi Arabia. As a teenager he ran away and joined the Taliban in Afghanistan, and in November 2001 he was captured by Afghanistan’s Northern Alliance forces and turned over to American authorities. José Padilla was born in Brooklyn and later moved to Chicago, where as a gang member he got into trouble with the law and served a prison sentence for manslaughter. He later converted to Islam, took the name Muhajir Abdullah, and became associated with an Islamic terrorist cell. Both men were eventually sent to Guantánamo, and ordered held without trial.
Since both men were American citizens, the administration did not attempt to claim that U.S. courts should stay out of these two cases, and in fact conceded that review by the judiciary was appropriate. That review, however, should be minimal. Moreover, the administration claimed that neither man had a right to see counsel, although it later reversed itself and agreed to let them consult lawyers after considerable public criticism of its position, especially by conservative groups such as the American Bar Association and former federal judges who filed a brief on their behalf and that of other Guantánamo detainees.
Legal scholars seemed to agree that the administration could designate people, even U.S. citizens, as enemy combatants, and in the 1942 German saboteurs case, one of those seized was an American citizen. The German saboteurs were tried before a military court and had the benefit of court-appointed lawyers; the Bush administration, however, claimed that it could seize and hold citizens designated as enemy combatants indefinitely, and without granting them access either to lawyers or to the courts.
In All the Laws but One, Chief Justice Rehnquist predicted that “there is no reason to think that future wartime presidents will act differently from Lincoln, Wilson or Roosevelt, or that future justices of the Supreme Court will decide questions differently from their predecessors.” But, he noted, in the more recent wartime cases the Court has proven less tolerant of the “least justified” restrictions on civil liberties. “It is both desirable and likely,” he went on, “that more careful attention will be paid by the courts to the basis for the government’s claims of necessity as a basis for curtailing liberty.” Rehnquist’s assumptions proved fairly accurate.
The Guantánamo cases initially involved a technical question—namely, whether federal courts had jurisdiction to hear appeals from the detainees being held outside the country. The administration, and a lower court, relied on a 1950 case, Johnson v. Eisentrager, which involved German prisoners seized by the United States in China and tried by an American military tribunal in Germany after the Second World War. At the time the high court ruled that because the Germans were aliens and were not on U.S. soil, they had no right to seek habeas review in American courts. The Bush administration claimed that the Guantánamo detainees were the same as the Germans in Eisentrager, enemy aliens on foreign soil. But lawyers representing the detainees asserted that Guantánamo was hardly foreign soil, since it was under the de facto control of the United States. Moreover, unlike the Germans, the aliens held there had not been charged with any offense or even found to fit the definition of an “enemy alien” or a “combatant.” Thomas Wilner, representing the Kuwaiti nationals held at the base, charged that American treatment of the aliens was “radically at odds with any constitutional regime of due process or the rule of law.”
In Rasul v. Bush (2004), decided along with Al Odah v. United States, a 6–3 majority made it clear that the Bush administration had gone too far in seeking unchecked power to detain and interrogate individuals in its war on terror. The detainees were entitled to habeas review by neutral adjudicators, and in a direct rebuff to the administration and especially the solicitor general (who sat glumly in the courtroom as the decisions were read on the next-to-last day of the term), reminded them that the Supreme Court, and no one else, is the final arbiter of the boundaries between the branches of government, in wartime as well as in peace.
The Court was even more explicit in Hamdi v. Rumsfeld (2004), regarding the American citizen captured with the Taliban in Afghanistan. “We have long since made clear that a state of war is not a blank check when it comes to the rights of the nation’s citizens,” wrote Justice Sandra Day O’Connor. “The threats to military operations posed by a basic system of independent review is not so weighty as to trump a citizen’s core rights to challenge meaningfully the government’s case and to be heard by an independent adjudicator.” Hamdi “unquestionably” had the right of access to a lawyer.
Although Justice Scalia, joined in a rare pairing with Justice Stevens, dissented from the reasoning in O’Connor’s opinion in Hamdi, the two went even further in rejecting the administration’s position. Reading from his partial dissent, Scalia said the Constitution offered only one way to achieve the administration’s goal—suspension of habeas corpus by a vote of Congress, a step that had not been taken in the contiguous states since the end of Reconstruction. “If civil rights are to be curtailed during wartime,” Scalia wrote, “it must be done openly and democratically as the Constitution requires.”
In the case of José Padilla, the Court sidestepped the issues in his case by declaring that he had sought habeas relief in the wrong court. By a 5–4 vote, the Court ruled that a federal court in New York where Padilla had brought suit lacked jurisdiction over him, and he should have brought the case in South Carolina, where he had been held in a military jail. The four dissenters said they would have decided the merits of the case, and Justice Stevens accused the majority of shirking its duty: “At stake in this case is nothing less than the essence of a free society.”
About the only victory the administration gleaned from these decisions is that O’Connor agreed that the government had a limited right to detain people it suspected of involvement in terrorism, but although she did not indicate any hard rule on the length of this detention, she implied that it could not be indefinite or overlong.
The administration tried to make the best of the decisions, but one could not ignore that the Court had issued a sharp rebuff to Bush’s policy. Following the decisions the army began making immediate preparation for setting up military tribunals at Guantánamo, and allowed the detainees there access to lawyers for the first time. Then the administration began dragging its feet. Civil rights groups attacked these hearings as shams and as completely lacking in due process either under a civilian or a military justice standard. Clearly the administration was trying to get around the rulings, and just as clearly the issue would come back to the high court.
Although the federal courts, especially at the lower level, did not wish to be seen as obstructionist in the early years of the war on terror, the message that went out constantly to the Bush administration was that prisoners taken in the war, whether called enemy combatants or something else, were entitled to at least some minimal considerations of due process. They could not be jailed indefinitely without recourse to some legal system, military or civilian; they had to be informed of the charges against them; and they had to be given an opportunity to refute those charges. To all of this the administration paid either no heed or lip service, and instead got Congress to pass legislation denying federal courts jurisdiction over the detainees. The case of Hamdan v. Rumsfeld (2006) thus raised core constitutional questions regarding both separation of powers as well as fundamental individual rights, including:
• Did Congress and the executive branch have the power to strip federal courts and the Supreme Court of jurisdiction?
• Did the executive have the authority, under the president’s war powers, to lock up individuals indefinitely, without benefit of traditional protections such as a jury trial, the right to cross-examine accusers, and the right to appeal?
• Did international treaties—specifically the Geneva Conventions on the treatment of prisoners of war—apply to those the government called “enemy combatants”?
The case involved Salim Ahmed Hamdan, a Yemeni with acknowledged links to al-Qaeda, and imprisoned at Guantánamo. Hamdan admitted that he had been a driver and bodyguard to al-Qaeda leader Osama bin Laden, but denied that he had any role in planning or executing the attacks on September 11, 2001. The only charge the government could come up with was “conspiracy,” a crime not recognized either in the Geneva Conventions or in American military law.
In Hamdan v. Rumsfeld (2006), the Court by a 5–3 vote (Chief Justice John Roberts had voted in this case in the Circuit Court and so recused himself) declared that the military tribunals convened by the Defense Department did not measure up to any standards provided for either under civilian courts or military courts convened under the Military Justice Act (the basic law setting forth the Code of Military Justice that governs the American armed forces), and in fact lacked any constitutional base whatsoever. Speaking for the majority, Justice John Paul Stevens used a separation of powers argument to note that Congress and the executive could not strip federal courts, and especially the Supreme Court, of jurisdiction to hear cases involving basic rights. In addition, the justices cited both earlier Supreme Court cases as well as the various Geneva Conventions to drive home the point that the administration had failed to live up to any standards of recognized law in treating the prisoners held at Guantánamo. For the administration to proceed, Congress would now have to authorize some form of tribunal.
The decision was widely seen as a rebuke to the Bush administration, not only on this issue but also on the president’s claim that under the Constitution’s Article II war powers clause he had authority to do whatever he considered necessary regardless of existing law, international treaties, or even the Constitution. Given the decisions in the two 2004 cases (Rasul and Hamdi), as well as the Court’s refusal to dismiss Hamdan’s habeas appeal when it first came up in January, the ruling may have shocked the Bush people but came as no surprise to those outside the government.
Moreover, the entire theory of an all-powerful presidency in which the war powers trumped any and all constitutional limitations on the chief executive came under increasing attack. Immediately after September 11, few people in or out of the government wanted to criticize the president’s handling of the war on terror. But the war was not going well, and Bush’s approval ratings stood well below the 50 percent mark during most of his second term. Not only had his overall handling of foreign and domestic policy been questioned, but critics, including many Republicans, had increasingly condemned the president’s claims of expansive powers.
When it became known in 2005 that the National Security Agency had conducted widespread wiretapping of American telephone communications, in defiance of the law and without consulting with the appropriate congressional committees, not only did civil rights activists protest, but so too did many conservative Republicans. U.S. District Judge James Robertson, one of eleven members of the secret Foreign Intelligence Surveillance Court that should have heard applications for such wiretaps, resigned in protest. Republican senators Chuck Hagel of Nebraska, Olympia Snowe of Maine, and Arlen Specter of Pennsylvania promised hearings on the matter, and Specter thought that there should and would be a court case on the subject.
Members of Congress also grew upset over “signing statements” Bush made when approving legislation, in effect reserving his right to ignore the laws. This practice came to light after Bush signed a law banning the torture of detainees. The law, sponsored by a former Vietnam War POW, Republican senator John McCain of Arizona, had such large backing in Congress that its supporters could easily have overridden a presidential veto. So Bush signed it, and at the same time quietly initialed a “signing statement” reserving his right to ignore the law. McCain and many other lawmakers were furious. Had Bush tried to ignore a duly passed statute, there surely would have been a court case, and since past Court decisions on presidential responsibility to enforce duly enacted legislation indicated Bush had little support for his constitutional views, the administration likely would have lost.
Bush was not a lawyer, but he relied on a cadre of attorneys in both the Justice Department and White House who advised him that he had practically unlimited authority as commander in chief. While other presidents had acted under a liberal interpretation of this authority, none of them, including Abraham Lincoln and Franklin Roosevelt, claimed as Bush did that he could ignore duly enacted legislation. (The administration’s lawyers also wrote memoranda that justified the use of torture by the army and CIA agents despite both American law and international conventions forbidding the practice.)
Bush, under the mantle of his war powers, waged the war on terror as he saw fit. If the intelligence agencies wanted to eavesdrop without warrants, he told them to go ahead. If the military wanted to hold detainees without trial or subject them to torture, Bush had no problems. The Court’s decision in Hamdan at the very least should have served as a warning to the president that the nation is governed under a Constitution; Bush seemed unwilling to recognize that signal, and so the Supreme Court had to act still one more time.
In Boumediene v. Bush (2008), the Court again rebuked the Bush administration for its handling of the rights of prisoners confined at Guantánamo, declaring that those in custody there had a constitutional right to challenge their detention. The case had been brought by Lakhdar Boumediene, a citizen of Bosnia and Herzegovina born in Algeria, who was arrested with five other men for allegedly planning to blow up the American embassy in Bosnia in October 2001. In January 2002 the Supreme Court of Bosnia ruled there was no evidence to hold the men and ordered them released. American troops, part of a peacekeeping mission in Bosnia, were waiting for them as they emerged from prison; they then captured and transported them to the prison in Guantánamo. There Boumediene was tried under the newly created military tribunals, and his lawyer took an appeal to federal courts challenging the validity of the military panels.
By a 5–4 vote the Court struck down sections of the 2006 Military Commission Act (the act that authorized the military tribunals), which stripped American courts of jurisdiction over habeas corpus petitions filed by foreign nationals held at Guantánamo, and ordered quick habeas hearings for them. As many as two hundred detainees had habeas petitions pending. This was the third consecutive rebuke for the administration in its policy of treating the detainees as nonpersons devoid of any rights protected by the Constitution.
Writing for the majority, Justice Anthony Kennedy said the review provided by the 2005 Detainee Treatment Act “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.” The laws and the Constitution, he declared, “are designed to survive, and remain in force, in extraordinary times.” To ensure that constitutional guarantees could be enforced, civilian courts would hear habeas petitions. While the decision left open many questions, it was categorical in its rejection of the administration’s basic arguments. It repudiated the legal basis for the strategy adopted after 9/11 of housing prisoners captured in Afghanistan and elsewhere at Guantánamo where, according to advice given by Justice Department lawyers to the White House, domestic American law would not reach.
Normally the Court, having decided that the right to habeas existed, would have sent the case back to the appeals court for further review of the procedures involved. But the “gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional,” and required that the high court itself make these determinations. The majority concluded that the procedures devised by the administration and Congress had major flaws. For example, a detainee could not present evidence that might clear him of blame because that evidence was withheld from the record or presented after the hearing.
Justice Kennedy took the unusual step of orally delivering much of his opinion, which included a lengthy history of habeas corpus. He was followed by Justice Scalia, who also read aloud from his bitter dissent and charged that the majority opinion “will almost certainly cause more Americans to be killed. . . . The decision is devastating.” Justice Roberts also dissented, and criticized the majority for dismissing out of hand the efforts of the other two branches to respond to the Court’s prior rulings. He claimed that “this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.” (Solicitor General Paul Clement, who had argued the case, told the justices that “the political branch has spoken,” an argument that at least five of the justices rejected.)
Paradoxically, given the deep split in Boumediene, the justices stood unanimously in a second habeas ruling the same day. Two men, Mohammad Munaf and Shawqi Ahmad Omar, both American citizens, faced criminal charges in Iraq and were being held prisoners in an American camp. The administration claimed that because the men were technically held by the twenty-six-nation multinational force in Iraq, federal courts did not have jurisdiction to hear their habeas corpus petitions.
All nine justices rejected the Bush administration’s position in Munaf v. Geren. The men were being held in an American military prison, and what mattered was that they were held by American soldiers subject to a U.S. chain of command. They thus had the right to file a habeas petition. But, after rejecting the administration position, the chief justice ruled against the two men on the merits of their case, stating that their release through habeas “would interfere with the sovereign authority of Iraq to punish offenses against its laws committed within its borders.”
The Bush administration left office in January 2009, with its policies toward detainees, torture, and claims of overriding executive privilege condemned by all but the most militant neoconservatives, some of whom had planned and then pushed the administration into wars in Afghanistan and Iraq. The new president, Barack Obama, promised that he would follow the law banning torture, and that the prison at Guantánamo would be closed. While the torture has ceased, the prison was still open at the time this chapter was written, since Congress has refused to appropriate the necessary money. Issues have also arisen as to where the prisoners would be transferred for trial, and what to do about a small number of men who cannot be tried but who are too dangerous to release. In some areas the Obama administration has continued Bushera policies, albeit without the claim of unlimited presidential authority.
The Court cases reaffirmed that even in an unusual type of war, one not involving a nation-state as the enemy and without any conceivable time limits, constitutional protections cannot be ignored. In most instances the prisoners at Guantánamo could have been tried either in civilian or military tribunals, and either convicted or released and deported back to their home countries. In those few instances where the claim that allowing defendants to see evidence against them would breach national security concerns, judicial procedures have long been in place to view such materials in camera by the judge. It is possible that a few real terrorists might have slipped through this net, but the damage they might have done seems small compared to that perpetrated against the Constitution itself in the name of national security. As Louis Brandeis wrote long ago, “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding” (Olmstead v. United States [1928]).
Al Odah v. United States, 553 U.S. 723 (2008)
Boumediene v. Bush, 553 U.S. 723 (2008)
Demore v. Kim, 538 U.S. 510 (2003)
Ex parte Quirin, 317 U.S. 1 (1942)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Johnson v. Eisentrager, 339 U.S. 763 (1950)
Munaf v. Geren, 553 U.S. 674 (2008)
Olmstead v. United States, 277 U.S. 438 (1928)
Rasul v. Bush, 542 U.S. 466 (2004)
Snyder v. Rosales-Garcia, 322 F.3d 386 (6th Cir., 2003), cert. denied, 539 U.S. 941 (2003)
Zadvydas v. Davis, 533 U.S. 678 (2001)
The literature on the war on terror is expanding at a rapid pace, but a good place to start is Louis Fisher, The Constitution and 9/11: Recurring Threats to America’s Freedoms (2008), which provides a broad but critical look at how the government responded to 9/11, and historical antecedents for certain policies. See also Richard M. Pious, The War on Terror and the Rule of Law (2006), and for a differing view, Richard A. Posner, Not a Suicide Pact: The Constitution in Times of National Emergency (2006). Specific studies include Jonathan Mahler, The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power (2008); Joseph Margolies, Guantánamo and the Abuse of Presidential Power (2006); Howard Ball, Bush, the Detainees, and the Constitution: The Battle over Presidential Power in the War on Terror (2007); and David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terror (2003). John Yoo, who wrote a number of the memos regarding presidential power and interrogation techniques, defended his position in The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (2005); see his article as well as other viewpoints in the Hoover Institution’s symposium, Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases (2005).