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You get the sense from O'Connor's plurality opinion in Hamdi and Rehnquist's majority opinion in Padilla that the Court is afraid of a popular backlash if it pushes the legal boundaries even further in the government's favor. At some point the American public might conclude that there, but for the grace of God, go I--or my next-door neighbor. The Court seems eager to preserve the look and feel of liberty while sacrificing its substance.
This is not the first time since the Civil War that the Supreme Court has been asked to address the constitutionality of military detention, for the duration of an armed conflict, of persons captured on American soil. The issue came up some 60 years ago, in the infamous decision Korematsu v. United States. In that case the government claimed that citizens and noncitizens of Japanese origin living on the West Coast posed imminent security risks and that wartime exigencies demanded that the entire community--some 100,000 individuals--be relocated to internment camps. The Court upheld the program, in part because the government claimed it was impossible to separate loyal residents and citizens of Japanese origin from the disloyal. It was not the Court's finest hour.
The Court's determination to avoid a repeat of Korematsu helps explain why its capitulations to executive authority were disguised by the lofty rhetoric of liberty. That rhetoric, in turn, helps explain why the news media reached such incorrect conclusions about what the Court had actually done. O'Connor's controlling opinion in Hamdi stated forcefully that "although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." In a veiled reference to the disastrous Japanese detention program, she added, "It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."
In a citation of Korematsu, O'Connor quoted not the majority that upheld the military detentions but the dissenting opinion of Justice Frank Murphy: "Like other claims conflicting with the asserted constitutional rights of the individuals, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled." Still, it was impossible to hide the fact that here, as in the Japanese detentions, the Supreme Court was allowing the military to detain even American citizens for the duration of an armed conflict, subject only to minimal procedures because "the full protections that accompany challenges to detentions in other settings may prove unworkable."
Souter, in his concurring opinion, was more direct, referring to the "cautionary example of the [Japanese-American] internments in World War II." He discussed the need for constitutional principles to constrain "inescapable human nature" and a runaway executive. Souter reminded us of the observation of one of the Court's most distinguished members, Justice Robert Jackson, who sat during World War II and who noted that "the president is not commander in chief of the country, only of the military." The president shares a role with the other two branches, Souter warned, in protecting national security. While the president is commander in chief, the Congress still legislates and appropriates funds, and the courts remain the ultimate arbiters of the balance between liberty and security.
Unfortunately, Souter's opinion was joined by just one other justice, Ginsburg, and both lent their concurrence to the result of O'Connor's opinion in order to assure a majority for imposing at least some restrictions on the executive's detention powers.
In the end, the Court's lofty language seems mere window dressing for the dark realities that have emerged. In the months after the three enemy combatant cases were decided, the administration and the military have indicated that they feel they can satisfy the Supreme Court's flexible due process standard and still have their way. On July 7 the government unveiled guidelines for tribunals to review the status of Guantanamo detainees. Rather than attorneys, the guidelines provide detainees with "personal representatives" who may or may not have legal training. (The O'Connor opinion in Hamdi requires that detainees be allowed legal counsel for federal habeas corpus proceedings, but not for the military's enemy combatant classification hearings.) Moreover, the conventional standards of evidence do not apply. Detainees are permitted to present only "reasonably available" information from "reasonably available" witnesses. The panel presiding over the tribunals is composed of three commissioned officers instead of impartial judges.
Not surprisingly, the tribunals have prompted a flurry of legal
challenges on behalf of Guantanamo detainees, arguing that the
hearings don't meet the Supreme Court's requirements. Yet it will
likely be the lower federal courts that will decide whether the
hearings pass muster. With
respect to prisoners at Guantanamo, that means the Court
of Appeals for the District of Columbia Circuit, which already has proven hostile to the claims of individual prisoners.
Switching Rather Than Fighting
In the meantime, American citizens who are detained in Southern naval brigs, such as Hamdi and Padilla, face appellate review in the 4th Circuit--assuming their cases get that far. On September 16, the government indicted two Muslim men on charges of plotting to finance a holy war overseas. Padilla's name was included as one of the unindicted co-conspirators, a strong indication that he's cooperating with authorities. The government has ways of convincing the guilty and innocent alike that they will fare better by switching rather than fighting, especially when a captive is accorded such minimal rights as were set out by the Supreme Court.
Hamdi's story has ended on an apparently less ominous note: On October 11, he was released from prison and deported back to his native Saudi Arabia, on the condition that he renounce his U.S. citizenship and agree to certain travel restrictions. His father, Esam Hamdi, bitterly criticized the length of Hamdi's three-year imprisonment, stating that his son was not a national security risk in the first place. Indeed, many critics speculated that Hamdi had been released because the government realized that it could not justify his status as an enemy combatant--even under the meager judicial review standard that the Supreme Court established.
But Hamdi's apparently happier ending notwithstanding, observers will likely marvel for a long time at how the Supreme Court's noble-sounding rhetoric turned out to have so little influence on the government's actual conduct. I am reminded of a toy I enjoyed as a young boy. It was a small jack-in-the-box type of gizmo with a lever on one end. After you pulled the lever from "off" to "on," the box started whirring and the lid popped open. A mechanical hand slowly emerged and grabbed the lever, pulling it back to the "off" position. The arm then withdrew, the lid closed, and the device shut down. There was a lot of action, but it did not accomplish much.