Enemy Guidelines

Tips for distinguishing between terrorists and innocent bystanders

When the Bush administration announced that it planned to try accused terrorists before special military tribunals, critics worried the process would be rigged to guarantee convictions. Then it turned out that people believed to be in league with Al Qaeda would be lucky to get any sort of trial at all: As "enemy combatants," they could be held indefinitely without charge.

Now that the Supreme Court has weighed in on this issue, defenders of due process are back where they were at the end of 2001, wondering exactly how the government will distinguish between actual terrorists and innocent people who happen to be in the wrong place at the wrong time.

Yaser Esam Hamdi, the American of Saudi descent at the center of one of the enemy combatant cases recently decided by the Court, claims to be just such a person. According to his father, he was a naive, 20-year-old relief worker who was trapped in Afghanistan during the war.

The Pentagon, which has been holding Hamdi in naval brigs for more than two years, asserts that he was "affiliated with a Taliban military unit and received weapons training." It reports Hamdi "confirmed that he surrendered and gave his firearm to Northern Alliance forces."

As the Supreme Court noted, this spare account, which the U.S. district judge who heard Hamdi's case called "little more than the government's 'say-so,' " remains "the sole evidentiary support that the Government has provided to the courts for Hamdi's detention." The Bush administration said it should be enough, and the Supreme Court disagreed.

In an opinion by Sandra Day O'Connor, a four-justice plurality concluded that Hamdi's detention was legitimate under Congress's post-9/11 authorization for the use of "all necessary and appropriate force" against Al Qaeda and its allies. Nevertheless, the justices said, "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."

O'Connor et al. made it clear that, in their view, less process is due in a case like Hamdi's than would be expected in an ordinary criminal prosecution. The "neutral decisonmaker," they said, might be a military tribunal; "hearsay…might need to be accepted"; and "the Constitution would not be offended by a presumption in favor of the government's evidence."

Given such concessions, the resulting process would be better than "the government's say-so," but perhaps not much better. It remains to be seen whether the Court will be equally accommodating in cases involving suspects arrested on U.S. soil, where arguments based on the exigencies of warfare are much weaker. The Court has avoided that issue for the time being by ruling that a challenge to the detention of accused terrorist Jose Padilla (who was arrested in Chicago) was filed in the wrong district court.

To make sure that Hamdi would get a chance to defend himself, Justice David Souter, joined by Ruth Bader Ginsburg, concurred with the plurality's judgment. But they did not agree that Hamdi's detention was authorized by an act of Congress, as federal law requires.

Justice Antonin Scalia, joined by John Paul Stevens, went further, saying the Constitution requires that Hamdi be tried as a traitor in civilian court unless Congress is prepared to suspend the writ of habeas corpus, the venerable method by which courts compel the executive branch to justify a prisoner's detention. "The very core of liberty secured by our Anglo-Saxon system of separated powers," Scalia wrote, "has been freedom from indefinite imprisonment at the will of the Executive."

To underline his point, Scalia quoted the 18th-century jurist William Blackstone, who warned that "if once it were left in the power of any…magistrate to imprison arbitrarily whomever he or his officers thought proper…there would soon be an end to all other rights and immunities." While executing a man or taking away his property "without accusation or trial" would cause popular outrage, Blackstone noted, "secretly hurrying him to gaol, where his sufferings are unknown or forgotten," is "a less public, a less striking, and therefore a more dangerous engine of arbitrary government."

Blackstone's warning about disappearing citizens raises the same question Scalia suggests when he says "currently we know of only two" U.S. citizens who have been detained as enemy combatants: Hamdi and Padilla. Given the Bush administration's claim of unilateral, unreviewable detention authority, we cannot assume that list is exhaustive.