A War Like No Other (10 page)

A more plausible account of Justice Brennan’s cosmopolitanism, of great sway in the Warren Court era, identifies the nation with the Constitution and underscores the constitutive nature of that all-important law: the Constitution creates the structure of government and defines the limits of its authority.
³⁹
The constitutive view of the relationship between the nation and the Constitution not only reflects how the founders understood their project but also, and perhaps more important, accords with the practice of constitutional adjudication over the last two hundred years. The doctrine of enumerated powers, the keystone of constitutional adjudication in the nineteenth century, was premised on the view that Congress had no authority other than that granted to it by the Constitution. In the twentieth century, the first question of constitutional adjudication shifted from whether the Constitution had granted the power to Congress to whether Congress or some other officer of the United States violated a particular constitutional prohibition. Still, it was assumed that the prohibitions on the government defined the outer limits of its authority and that, as a juridical entity, the government of the United States has no existence outside of the Constitution.
⁴⁰

The limits on government authority can be derived from the
terms upon which power was conferred on the new government, from certain prohibitions on the government contained in the body of the Constitution—notably Article IV—and, above all, from the amendments to the Constitution adopted in 1791, the Bill of Rights. For the cosmopolitan, the Bill of Rights is conceived not as a testamentary document distributing a species of property to specific and limited classes of persons but rather as a broad charter setting forth the norms that are to govern the operation of government. “No person shall be deprived of life, liberty, or property without due process of law.” “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” “Cruel and unusual punishment shall not be inflicted.” For the cosmopolitan, rights are not property belonging to particular people but are the concretization of these sweeping prohibitions of the Constitution.

This view of rights does not necessarily give the protections of the Constitution the universal scope that Justice Brennan desired. It still remains for the Court to apply the norm in some specific case, and that necessarily entails a process of interpretation. The history or wording of the norm may delimit its scope, and the context will also determine the content of the right. All that can be said is that this way of viewing rights—as norms, not property—more easily accommodates cosmopolitanism and is more conducive to that orientation. It makes it more difficult for a justice to claim, as Chief Justice Rehnquist did in
Verdugo-Urquidez,
that the Fourth Amendment affords protection only to citizens or those who voluntarily associate themselves with the national community. It renders the effort to limit the Bill of Rights in this way more implausible, and suggests that those limits are not based on a strict interpretation of the text but on more extraneous or political considerations, such as giving the
executive the flexibility Chief Justice Rehnquist believes is necessary to conduct foreign affairs effectively.

Chief Justice Rehnquist ended his opinion in
Verdugo-Urquidez
by proclaiming, “For better or for worse, we live in a world of nation-states.”
⁴¹
The importance of the nation-state cannot be denied, even today, in the face of ever-increasing globalization. The cosmopolitan view of the Constitution does not, however, deny the importance of the nation-state but offers an alternative and, in my view, more appealing way of understanding the relation between the Constitution and the nation. Of course, noncitizens do not vote, and thus are not politically empowered to demand that the government justify its actions to them. But that does not mean that the government owes them no duties, as is indeed clear from the treatment of noncitizens who are residents of the country. They too cannot vote but are protected by the Constitution. Similarly, although the government does not act in the name of noncitizens, those in whose name it does act—“we the people”—may demand that it proceed in a certain way whenever it acts and regardless of against whom it acts.
⁴²
The key provisions of the Bill of Rights—including but in no way limited to the Fourth, Fifth, and Eighth Amendments—present themselves as universal prohibitions and, as such, may be read as an expression of the demands by the founding generation as to the way the government they were creating must act.

Everyone who resides in the United States, aliens and citizens alike, are expected to obey the laws of the United States, and can be called upon to lend support to the government, through, say, the payment of taxes and perhaps even serving in the military. Yet, as is evident from the rules regarding the rights of those who flout the law, and who we can assume are justly convicted of doing so, the protection of the Constitution is not in any way limited to those who obey the laws or otherwise support
the government. The obligations imposed on the government by the Bill of Rights are not a quid pro quo offered to its subjects but the expression of principles of right behavior.
⁴³

Chief Justice Rehnquist and Justice Brennan occupied polar positions in
Verdugo-Urquidez.
Justices Scalia, Thomas, and O’Connor joined Chief Justice Rehnquist’s opinion without comment. Justice Thurgood Marshall joined Justice Brennan’s opinion in a similar fashion. The remaining three justices—John Paul Stevens, Harry Blackmun, and Anthony Kennedy—were arrayed between the poles. None of these three believed that only those persons who voluntarily affiliated themselves with the national community were protected by the Fourth Amendment. Justices Blackmun and Stevens stressed the fact that Verdugo-Urquidez had been placed on trial in the United States for violating its criminal laws, and, as a result, the Fourth Amendment was applicable. Justice Blackmun dissented because, although he agreed with Chief Justice Rehnquist that there was no need for a warrant to search the residence of an alien outside the country, he insisted that to be valid under the Fourth Amendment the search must be reasonable. Blackmun thought that the case should be remanded to the lower court to make the reasonableness determination. Justice Stevens, like Justice Blackmun, applied the reasonableness standard but on the record before him thought there was sufficient basis to conclude that the search of Verdugo-Urquidez’s house was reasonable. He concurred in the judgment.

The position of Justice Kennedy—then a very recent appointee to the Court—is harder to characterize. He was the crucial fifth vote that Chief Justice Rehnquist needed to endow his opinion with the status of law, and Justice Kennedy obliged him. Justice Kennedy began his separate concurrence by announcing that he joined the chief justice’s opinion. He also said that his views did not depart in “fundamental respects” from those
expressed by the chief justice,
⁴⁴
but one is left to wonder whether this was in fact the case. Although he rejected the view that the Fourth Amendment’s warrant requirement should be applied to the search of a foreign home of a non-resident alien, his reason was quite different from Rehnquist’s. He did not read the phrase “the people” as a restriction on the universe of persons protected. As he put it, “explicit recognition of ‘the right of the people’ to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it.”
⁴⁵
In contrast to Chief Justice Rehnquist, Justice Kennedy simply posited that adherence to the Fourth Amendment warrant requirement abroad would be “impracticable and anomalous.”
⁴⁶

Even more important, Justice Kennedy seemed to give a certain measure of extraterritorial force to the Constitution. He began from the proposition that “it is correct . . . that the government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic.”
⁴⁷
Yet, building on a view articulated by the second Justice John Harlan, he maintained that this does not require that the government necessarily apply each and every provision of the Constitution abroad. Rather, the constitutionality of the government’s actions abroad should be judged by a flexible standard based on some notion of fundamental fairness. In conducting searches of the homes of noncitizens abroad the Constitution does not require federal agents to obtain a warrant, as the Fourth Amendment might be read to require, but only that noncitizens be treated fairly. Justice Brennan’s constitution would also allow adjustments to be made as to how the Bill of Rights is applied abroad but, as with the doctrine of selective incorporation, always within the disciplining force of the text of the amendments themselves. Justice Kennedy’s constitution is more flexible, and thus less clear. My hunch is that Justice Brennan’s approach would yield results
more approximating justice than Justice Kennedy’s, but both describe a constitution without borders.

Such a view of the Constitution makes an appearance in
Rasul,
though in the most oblique way. When Justice Stevens cited
Verdugo-Urquidez
in footnote 15 in
Rasul,
he referred only to Justice Kennedy’s concurring opinion in that case, not Chief Justice Rehnquist’s opinion for the Court. The significance of that selective reference is not clear to me. Perhaps Justice Stevens meant to embrace Justice Kennedy’s constitutional cosmopolitanism. Or, conceivably, the reference was offered as an inducement for Justice Kennedy to join the majority opinion. As it turned out, however, Justice Kennedy did not join Justice Stevens’s opinion, but wrote a short separate concurrence. In it, he applied the same flexible approach outlined in his concurrence in
Verdugo-Urquidez,
again expressing unease with creating “automatic” rules.

Like Justice Stevens, Justice Kennedy acknowledged the unique status of Guantánamo—that for all practical purposes it was a territory of the United States. Yet he refused to treat the case as though it were nothing more than an exercise in statutory interpretation. Justice Kennedy understood that the petitioners had to have some constitutional rights in order for there to be any point in the habeas proceeding at all. Although he cautioned against judicial interference with the rightful prerogatives of the president acting as commander in chief, Justice Kennedy recognized that “there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated.”
⁴⁸
The touchstone for Justice Kennedy was “military necessity”
⁴⁹
—only exigencies of war would prevent the exercise of the judicial power implicit in the writ of habeas corpus. He also believed that the government’s insistence on military necessity in the case at hand was contradicted by the fact that prisoners were being
held indefinitely (justified by the government on the theory that they were illegal enemy combatants, comparable to members of irregular militias, and thus not entitled to the usual protections of the Third Geneva Convention for prisoners of war, including repatriation at the end of the hostilities). Justice Kennedy wrote, “[p]erhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.”
⁵⁰
Such a flexible or variable approach has its pitfalls because it vests enormous discretionary power in the judiciary, but at least one can see within it the possibility of confronting on a constitutional basis possible government abuse of alien prisoners who are not American citizens, such as occurred at Abu Ghraib, provided of course that Justice Kennedy’s insistence upon fundamental fairness is not conditioned upon the anomalous territorial status of Guantánamo.

No one else joined Justice Kennedy’s opinion. The timidity of the majority in
Rasul,
as well as that of the majorities responsible for
Padilla
and
Hamdi,
is no accident but, rather, a product of the situation in which the justices found themselves. Faced with the events of September 11, and then the invasions of Afghanistan and Iraq and the military occupations of these countries, the demands for power by the president and his administration must have pressed heavily on the justices. Although the justices are committed to the rule of law and the protection of the Constitution, they also see themselves as responsible for protecting the interests of the nation they serve. The justices are practical people, so they searched for ways to honor the Constitution without compromising vital national interests. As a result, they told Jose Padilla to start over in another court, they provided Yaser Hamdi with an opportunity to contest the legality of his classification
but made it possible for that hearing to be conducted by a military tribunal, and they allowed the prisoners in Guantánamo to begin habeas proceedings without telling them in any clear way what rights they might assert in those proceedings. What is missing from this calculus—and, in my judgment, from all three of these much-discussed cases—is a full appreciation of the value of the Constitution as a statement of the ideals of the nation and as the basis of the principle of freedom and, even more, a full appreciation of the fact that the wholehearted pursuit of any ideal requires sacrifices, sometimes quite substantial ones. It is hard for the justices—or, for that matter, anyone—to accept that we may have to risk the material well-being of the nation in order to be faithful to the Constitution and the duties it imposes. Still, it must be remembered that the issue is not just the survival of the nation—of course the United States will survive—but the terms of survival.