Civil Liberties and Enemy Combatants

If you were relying solely on media accounts for guidance, you would have gotten the impression that the Supreme Court's June 28 rulings on "enemy combatants" were a clean sweep for civil liberties. With few exceptions, reporters and commentators interpreted the rulings as unwavering affirmations of the judicial branch's authority in the face of an overreaching executive intent on detaining, indefinitely and incommunicado, citizens and noncitizens designated as enemies in the war on terror.

Harvard law professor Laurence Tribe opined in a July 1 Wall Street Journal op-ed that "the transparency these opinions demand as a hallmark of defensible detention could not be further from the spirit of secrecy that the administration's briefs and arguments insist is an indispensable element of intelligence-gathering detentions." A June 29 Newsday headline labeled the rulings a "Setback for Bush Administration" and a "Win for Detainees."

A July 4 Los Angeles Times article echoed that sentiment, praising the Court for its declaration that "the rule of law stands above the commander in chief, even in times of war and national emergency."

Civil liberties groups were similarly effusive. A press release from the American Civil Liberties Union gushed that "the Supreme Court has sent a powerful message that the end does not justify the means, and that it will not sit on the sidelines while the rule of law is ignored." The normally hard-headed Timothy Lynch of the libertarian Cato Institute, which filed powerful amicus briefs in two of the enemy combatant cases, was quoted in a June 29 Dallas Morning News story as saying he didn't "see a win in this anywhere for the administration."

The reality, however, was significantly less uplifting. Berkeley law professor John Yoo, a former official in John Ashcroft's Justice Department, concluded that the Court had left the government "with sufficient flexibility to effectively prevail in the future." The effects of the rulings have yet to be fully felt since the proceedings have a long way to go before they are finally played out, but the fine print of the Court's controlling opinions, combined with the manner in which the government is proceeding with enemy combatant hearings, strongly suggests that widespread proclamations about the triumph of liberty were premature and probably in serious error. Each decision included enough qualifications and concessions to eviscerate in practice the due process rights that the justices praised in theory.

That Great Writ Sure Is Great

The first case the Court chose to consider, Rasul v. Bush, involved a group of prisoners purportedly captured fighting for the Taliban regime in Afghanistan and held in a detention facility in Guantanamo Bay, Cuba. The chief question in the case was whether Guantanamo, governed by a 100-year-old perpetual lease between the U.S. and Cuba, was beyond the reach of American courts. (The prison population in Guantanamo was composed exclusively of non-U.S. citizens, perhaps so it wouldn't appear that Americans were being herded into distant gulags.) Lawyers for the detainees filed habeas corpus petitions with the federal district court in Washington, D.C., eventually appealing to the Supreme Court in order to compel the government to justify the inmates' detention.

In a majority opinion written by John Paul Stevens, he and four other justices, joined by Anthony Kennedy in a concurring opinion, rejected the Bush administration's claim that the courts had no power to review the military's actions in Guantanamo. Addressing what the Court termed "the narrow but important question of whether the United States courts lack jurisdiction to consider challenges to the legality of the detention" of foreign nationals captured abroad and held in Guantanamo, the majority quoted the late Justice Robert Jackson's dissent in a 1953 case involving habeas corpus relief for aliens held in U.S. custody:

"Executive imprisonment has been considered oppressive and lawless since [King] John, at Runymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint."

Notwithstanding the broad, inspirational language, Rasul presented a narrow question: whether the federal courts had any jurisdiction to hear habeas corpus petitions from prisoners held outside the territorial limits of the country. The issue in the second case, Hamdi v. Rumsfeld, was broader: the nature and extent of rights afforded to prisoners designated as enemy combatants. Like Rasul, Hamdi focused on a dispute over habeas corpus--with the important distinction that the prisoner in this case was an American citizen held in the U.S. Yaser Esam Hamdi, born in Louisiana but raised in Saudi Arabia, had by 2001 taken up residence in Afghanistan, where he was seized, reportedly on the battlefield, by members of the Northern Alliance and turned over to the Americans. He was held at Guantanamo until the authorities found out he was an American citizen, whereupon he was transferred to a naval brig in Norfolk, Virginia, and later to another brig in Charleston, South Carolina. He was held incommunicado, without formal charges, without the right to see a lawyer, and without access to judicial review.

Unlike in the Guantanamo case, when Hamdi's father filed a habeas corpus petition in a federal district court in Virginia, near where his son was being held, the government agreed that the courts had jurisdiction to review Hamdi's detention. But it asserted that they had no authority to question the factual basis of the government's case against him. The military's only evidence was a nine-paragraph declaration, signed by a mid-level Pentagon official named Michael Mobbs, that recounted second- and third-hand reports of Hamdi's alleged affiliation with the Taliban, his combat against U.S. allies, and his surrender of an assault rifle. The government claimed the document, which it described as "some evidence," was adequate to justify Hamdi's imprisonment. Under the extremely deferential "some evidence" standard advanced by the government, a court reviewing Hamdi's enemy combatant status would have to assume the government's claims were factually correct, and judicial review would be akin to a rubber stamp.

In Hamdi, Sandra Day O'Connor wrote an opinion that three other justices joined without reservation. Two more justices, David Souter and Ruth Bader Ginsburg, supported the decision's result but objected that it did not go far enough in protecting liberty. Hence a seemingly solid six-justice bloc mandated the protections set out in the O'Connor opinion. The opinion asserted not only that the federal courts had habeas jurisdiction (which the administration did not deny) but also that Hamdi was entitled to some kind of "due process" hearing (which the administration had vigorously contested). For many, this was evidence enough of the Court's commitment to civil liberties.

Guilty Until Proven Innocent

But "due process," guaranteed by the Fifth Amendment, is a flexible concept. The process that is "due" depends upon the circumstances: Criminal defendants facing felony charges are entitled to a high level of procedural rights, while young public school students undergoing disciplinary proceedings are subject to a more relaxed standard.

In Hamdi O'Connor wrote that while an alleged enemy combatant "must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker," the degree of due process would be commensurate with "the nature of the case." Because of the ongoing war on terrorism, "the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." O'Connor said hearsay might be admissible, for example, when direct evidence was not readily available.