Restoring Some Balance

There is certainly some justification for being less than completely satisfied, as Elaine Cassel certainly is, with the Supreme Court’s decisions this week on people detained without trial or access to friends, family or lawyers by the Bush administration, notably Jose Padilla, Yaser Esam Hamdi and the 600 or so foreign fighters held in the military prison at Guantanomo. The decisions did, after all, affirm relatively broad powers for the president, during time of war or congressionally-affirmed crisis.

On balance, however, civil libertarians should be somewhat pleased with the outcomes here. One could argue that the court slapped down the Bush administration – as it did, if not as firmly as some of us would have liked – in part because the original claims the administration made for its powers during wartime were so breathtakingly outrageous that the judicial branch had to act, and that by making such extreme claims the administration might have achieved as much as it really wanted with the final outcome. But some conservatives are screaming (though it’s not out of line to consider that some commentators are part of the coalition of the duped), and the administration’s freedom of action really has been circumscribed, at least a bit.

The bottom line, as Justice Sandra Day O’Connor put it in the Hamdi case, is that the court “made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”


Three cases are of interest here. In Hamdi v. Rumsfeld, Yaser Esam Hamdi, an American citizen by birth (though his parents moved back to Saudi Arabia when he was young), was caught allegedly fighting on the side of the Taliban in Afghanistan, declared an “enemy combatant,” and held for two years with no charges filed and no contact with his family or a lawyer.

Jose Padilla is the alleged “dirty bomber” who was arrested in a Chicago airport before he had a chance to carry out any of the terrorist acts the government alleges he was plotting, and has been held incommunicado in a military prison. In Rasul v. Bush, the court took up the contention that foreign fighters at the Guantanamo prison on Cuba can have access to U.S. courts to contest or clarify their status.

To be sure, the court did uphold the right of the president to declare people enemy combatants (though Justice O’Connor noted, one may hope with a touch of purse-lipped asperity, that “There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such”) and detain them. But it rejected decisively the breathtaking claim that the president has the sole power, once he has used the term “enemy combatant,” to keep somebody imprisoned for indeterminate time and answer to nobody for his decision.


The court ruled that a citizen held as an enemy combatant is entitled to “notice of the factual basis for his classification” and “a fair opportunity to rebut the government’s assertions before a neutral decision-maker. It continued: “we necessarily reject the government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances.”

Justices Scalia and Stevens went further in a dissent, arguing that the right of habeas corpus – the ancient protection against arbitrary detention – can be suspended only by Congress (as the Constitution explicitly provides) and Hamdi’s detention was therefore entirely illegitimate. Either release him on a habeas corpus writ, wrote Scalia, in essence, or charge him with treason and try him. “If civil rights are to be curtailed during wartime,” he wrote with unquestionable asperity, “it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court.”

In Mr. Padilla’s case, the court sidestepped the issue on the ground that his case had been brought in the wrong court and sent it back to a lower court for resolution. But its arguments suggested that if anything Mr. Padilla has a stronger case than Mr. Hamdi. Nonetheless, while it seems clear that the court expects a lower court to grant habeas corpus, especially since he was not captured on foreign soil or in the company of foreign enemy fighters, it seems strange that it would extend his captivity on what strikes me as a bit of a technicality. But lawyers and judges can be odd creatures.


As for the prisoners at Guantanamo, the court ruled 6-3, with Stevens writing the opinion, that federal judges have jurisdiction to consider habeas corpus petitions from detainees who argue they are being unlawfully held. It left some details unclear. Whether the issue can be handled by a military tribunal, whether the cases can be consolidated, whether there will be jurisdiction-shopping, whether charges will be filed before habeas petitions are heard, are all to be decided. But the court was clear that the Constitution requires a semblance of due process even for foreign fighters.

Justice Scalia wrote a dissent, joined by Rehnquist and Thomas, arguing that U.S. courts can hear such cases only in their respective jurisdictions, and Guantanamo is outside the jurisdiction of any federal district court. It also argues that the decision, by allowing any alien to bring a habeas petition in federal court, could create legal havoc and interfere seriously with the conduct of hostilities.

But the majority clearly allows Guantanamo prisoners to seek some clarification of their status and to challenge the apparent fact that they are to be held – not as prisoners of war with the protection of the Geneva Convention but as people with no rights or protections – until the war on terror, which various high officials starting with Vice President Cheney have assured us is likely to go on for decades, is over. Or maybe longer.

All in all, a firm rebuke to those who want to give the president virtually dictatorial, unanswerable power. If it was not as firm a rebuke as one might have liked, it was still a rebuke.


Among the interesting aspects of these cases is how the justices split on various issues. Justice Scalia, generally viewed as the most uncompromisingly conservative of the justices, was downright scathing in his dissent on the Hamdi case, although he wrote the dissent in the Guantanamo case.

His position makes a certain amount of sense, however. Hamdi is an American citizen, and as Scalia sees it American citizens are entitled to the full protection of the Constitution – unless Congress suspends habeas corpus, which it didn’t do. As to the Guantanamo cases, he complains that “today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made.”

This is not quite accurate. The majority spent a fair amount of time discussing the unique status of Guantanamo, which was leased from Cuba in 1903 (with a recognition of Cuba’s “ultimate sovereignty,” to be sure) and modified in 1934 through “a treaty providing that, absent an agreement to modify or abrogate the lease, the lease would remain in effect ‘so long as the United States shall not abandon the … naval station of Guantanamo.'” The military and/or the administration might have made the decision to house prisoners at Guantanamo believing that it was on foreign soil and that therefore the treatment of prisoners would be beyond the reach of U.S. law – a thoroughly unworthy, perhaps despicable motive in a country that is supposed to be a nation of laws, and one that quite naturally raises questions of what kind of treatment it intended to hand out to the prisoners – but any prudent person would have to know that this was an iffy proposition.

Perhaps the most dismaying aspect of the cases is the fact that Justice Thomas, who many observers believed had some fairly strong libertarian leanings, came down foursquare on the side of untrammeled and unquestioned executive power in all the cases.

In the Hamdi case, here is Thomas:

“The Government’s asserted authority to detain an individual that the President has determined to be an enemy combatant, at least while hostilities continue, comports with the Due Process Clause. As these cases [other instances, like quarantines, where detention was deemed permissible] also show, the Executive’s decision that detention is necessary to protect the public need not and should not be subjected to judicial second-guessing. Indeed, at least in the context of enemy-combatant determinations, this would defeat the unity, secrecy, and dispatch that the Founders believed to be so important to the warmaking function.”

So the fact that there is a provision in the Constitution for suspending habeas corpus, which was not exercised in this instance, the fact that Hamdi is a citizen, the fact that he has been held for two years and nobody will venture a guess as to how much longer the executive branch intended to keep him incarcerated without charges, must give way to “unity, secrecy, and dispatch” in wartime. This is not exactly the default position of an instinctive libertarian or even somebody with noticeable libertarian leanings. Clarence Thomas might and probably will do better in decisions on other issues, but like so many conservatives he is simply transfixed by the notion that the president’s power must be almost absolute during wartime.


I found it interesting that Justice Souter (joined by Justice Ginsburg) in the Hamdi case, affirmed an argument I made more than two years ago about detainees and the Geneva Convention. But he did it in the Hamdi case rather than in the Guantanamo case, where it seems to me it is, if anything, more applicable. The majority in the Guantanamo case might argue that since they had already determined that U.S. courts can entertain habeas petitions from the Guantanamo prisoners on other grounds it was not necessary to handle this issue. But it is curious nonetheless.

Here is Souter on Hamdi and the Geneva Convention:

“By holding him incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status, (See Brief for Respondents 24; White House Press Release.) This treatment appears to be a violation of the Geneva Convention provision that even in cases of doubt, captives are entitled to be treated as prisoners of war ‘until such time as their status has been determined by a competent tribunal.’ (Art. 5,6 U.S.T. at 3324.) The Government answers that the President’s determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi’s status and removes any doubt that would trigger application of the Convention’s tribunal requirement. (See Brief for Respondents 24.) But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation, Enemy Prisoners of War, retained Personnel, Civilian Internees and Other Detainees, Army Re. 190 8, Sections 1, 5, 1 6 (1997, adopted to implement the Geneva Convention, and setting out a detailed procedure for a military tribunal to determine an individual’s status. (‘A competent tribunal shall be composed of three commissioned officers’; a ‘written record shall be made of the proceedings’; ‘proceedings shall be open with certain exceptions’; ‘persons whose status is to be determined shall be advised of their rights at the beginning their hearings,’ ‘Allowed to attend all open sessions, allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal,’ and to ‘have a right to testify’; and a tribunal shall determine status by a ‘preponderance of evidence’). One of the types of doubt these tribunals are meant to settle is whether a given individual may be, as Hamdi says he is, an ‘innocent civilian who should be immediately returned to his home or released.'”

A few lines later, Souter continues:

“The regulation also incorporates the Geneva Convention’s presumption that in cases of doubt, ‘persons shall enjoy the protection of the … Convention until such time as their status has been determined by a competent tribunal.’ This there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority.”

Those lines really should have been in the Guantanamo case, Rasul v. Bush. The fact is that the United States government wanted to ignore the Geneva Convention at Guantanamo because it wanted to question the prisoners for intelligence-gathering purposes, which the Geneva Convention doesn’t allow, so it decided to ignore the fact that it had signed the convention and had even promulgated regulations to be in conformity with it. That is hardly the action of a determined upholder of the sacred Rule of Law.

The detainee decisions were hardly ideal. Sandra Day O’Connor’s opinion reflects her typical desire to split differences and make everybody happy. But the decisions have saved us from the truly stunning assertion that the president, on his own, can decide to detain people indefinitely without charges simply by making an unappealable determination of their status (and I’d welcome legal scholars’ opinions, but I think it’s very close to an utterly novel status). That is the stuff of tyranny. In a “war” that is undeclared and in which the government urged citizens not to panic but to go shopping, it was utterly unjustified.

Author: Alan Bock

Get Alan Bock's Waiting to Inhale: The Politics of Medical Marijuana (Seven Locks Press, 2000). Alan Bock is senior essayist at the Orange County Register. He is the author of Ambush at Ruby Ridge (Putnam-Berkley, 1995).