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.

And since the government might find it burdensome, or at least inconvenient, to present a powerful factual case justifying a detention, the Court's flexible due process standard "would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal [by the detainee] were provided." This is a remarkable concession to the government. In a normal criminal proceeding, a defendant enjoys a "presumption of innocence" that can be overcome only by evidence proving guilt "beyond a reasonable doubt." In a civil proceeding, the side that produces a "preponderance of the evidence," showing that its story is more likely than not to be true, wins. But in an enemy combatant hearing as outlined by O'Connor, the government enjoys a blanket presumption in its favor.

It would take an extraordinary effort for a detainee to gather the quantity and quality of evidence required to overcome such a presumption. The vast majority of prisoners would lack the wherewithal to gather the witnesses and documents needed. Hence the presumption becomes, practically speaking, conclusive. Where each side has difficulty presenting its case, the government wins by default.

Remarkably, the Court left open the possibility that the government might be allowed to proceed, using this amorphous and lax evidentiary standard, before a military tribunal rather than anything resembling a civilian court. And even where the government chose to proceed in a civilian court rather than a military tribunal, O'Connor wrote, that court "may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's [evidence]." Given the presumption in favor of the government's evidence, satisfied by a document as imprecise and sketchy as the Mobbs declaration, such a hearing, even in a civilian court, would verge on point-lessness.

"Use All Necessary and Appropriate Force"

Any trial lawyer could tell you there is little practical difference between the government's proposed "some evidence" standard and the Supreme Court's standard. While the Court required that prisoners be allowed to challenge the government's hearsay declarations, it tipped the scales of justice by establishing a barely rebuttable presumption in the government's favor. Erroneously detained people in categories that O'Connor claims would be protected--"the errant tourist, embedded journalist, or local aid worker"--would face the dire possibility of being mistakenly held for the duration of a seemingly endless war.

Finally, one must not lose sight of the fact that the O'Connor opinion confirmed the government's position that a citizen can lawfully be declared an enemy combatant and held, without charge, for an as-yet-undefined and hence potentially unlimited period. O'Connor found support for this extraordinary exercise of power in the Authorization for the Use of Military Force (AUMF) that Congress passed after the September 11 attacks. The AUMF empowered the president to "use all necessary and appropriate force" against those who planned, carried out, or supported the attacks. The Court considered this authorization adequate to justify, by extension, the indefinite holding of "enemy combatants." Indeed, the Court was so solicitous of presidential power that it declined even to declare that specific congressional support was required. It concluded simply that even if such support were necessary, the AUMF would be sufficient.

Antonin Scalia penned a fiery dissent, joined by John Paul Stevens, from O'Connor's compromise. But he did not proceed from a realistic understanding that O'Connor's due process standard amounted to little more than smoke and mirrors. Rather, he approached the problem based on his literal assessment of the Constitution and what it requires. Sympathizing with the Court's attempt to balance "the competing demands of national security and our citizens' constitutional right to personal liberty," he concluded nonetheless that the government had no authority to detain citizens on American soil without due process of law--unless Congress suspended habeas corpus, as the Constitution allows in certain dire emergencies.

Without such a suspension, wrote Scalia, "a citizen held where the courts are open is entitled either to a criminal trial or to a judicial decree requiring his release." He derided O'Connor's compromise as "an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a 'neutral' military officer rather than judge and jury." In this instance, Scalia's literalism happened to coincide with the pragmatic knowledge and experience of trial lawyers.

Court Picking Plan

The third case decided by the Court, Rumsfeld v. Padilla, involved a habeas petitioner in a position somewhat similar to Hamdi's. Jose Padilla was also an American citizen whom the Bush administration claimed had a connection to Al Qaeda. Unlike Hamdi, however, he was arrested not on some foreign battleground but at Chicago's O'Hare International Airport after getting off a flight from Pakistan.

Initially Padilla was picked up and held on a "material witness" warrant, a remarkable legal device that allows the government to temporarily detain a witness on the assumption that his testimony is relevant to a criminal proceeding and that his future availability cannot otherwise be assured. Padilla was brought to New York, where his lawyer, Donna R. Newman, filed a motion in the Manhattan federal district court requesting that the material witness warrant be vacated. The government, apparently fearing an abrupt endgame when it came time to present its evidence to justify holding the "witness," changed Padilla's status from material witness to enemy combatant. The feds then spirited him from New York to the naval brig in Charleston, South Carolina. Conveniently, this brig is under the jurisdiction of the most staunchly government-friendly federal appeals court in the nation, the U.S. Court of Appeals for the 4th Circuit.

When Newman learned that her client had been moved to the 4th Circuit, she changed her motion attacking the material witness warrant into a petition for a writ of habeas corpus seeking his release. The district judge kept the case in New York because the government had moved Padilla after Newman filed the motion to dismiss the material witness warrant. Since it was the government's decision to bring Padilla to New York initially, the judge reasoned, it should have to stick with its original choice of forum.

The legal outcome in New York initially favored Padilla. The U.S. Court of Appeals for the 2nd Circuit ruled that he had to be charged or released from military custody, and that he could not be held incommunicado, indefinitely, without charge. But the Supreme Court, in a majority decision written by Chief Justice William Rehnquist and joined by four other justices, with Kennedy concurring separately, held that Padilla had filed his habeas petition in the wrong jurisdiction, and that he had to begin over in the district of his incarceration, namely South Carolina, located in the 4th Circuit. Because this decision forces alleged enemy combatants to file habeas corpus petitions in the federal judicial district in which they're held, the government can in effect select a friendly judicial venue by shipping prisoners off to brigs in the 4th Circuit. Since the Supreme Court has left the lower courts the task of deciding exactly what "due process" for alleged enemy combatants entails, the choice of venue becomes a crucial advantage for the government.

If Padilla's case had reached the Supreme Court on the merits of the underlying legal issue as to what kind of process he is entitled to, the outcome might have been more encouraging. In Hamdi the Court indicated that it might draw a distinction between an enemy combatant like Hamdi, who was an American citizen allegedly captured fighting American forces on a foreign battlefield, and Padilla, an American citizen arrested on American soil. O'Connor noted a Lincoln-era precedent, Ex parte Milligan, that declared unconstitutional the president's suspension of habeas corpus and the continued detention of an Indiana resident, Lamdin P. Milligan, who was arrested in his home and accused of collaborating with the Confederacy. Under that decision, O'Connor concluded, Milligan could not be detained by the military for the duration of the Civil War, "whether or not he was a citizen." But "had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different."

This distinction between those arrested abroad and those arrested on U.S. soil suggests that Padilla might eventually have been accorded more procedural rights than either Hamdi or the Guantanamo detainees. It hardly seems intuitive that the locale of your arrest should be such an important factor in determining the extent of your legal rights to contest your detention. Surely the government's claims about the difficulties of obtaining and arraying evidence amid the chaos and destruction of war, when dealing with someone allegedly captured on a foreign battlefield, can be dealt with on a case-by-case basis rather than by giving the government a blanket presumption. In most instances, you would think that the prisoner would have fewer resources than the government for obtaining access to evidence. In some instances, evidence might be easily available to the government. For the Court to give the government a blanket reprieve from obligations to obtain the best evidence fairly readily available, and to put excessive burdens on resourceless detainees, seems like something less than the process that is due.

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.

Camp Followers

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.