A War Like No Other (6 page)

What moved Judge Ellis was not, I believe, his tortured and strikingly unpersuasive application of the Third Geneva Convention, but the determination of the president that all those who resisted the United States in Afghanistan were unlawful combatants. Judge Ellis acknowledged the president’s decision and said that it was entitled to great deference, though he was meticulous in declaring a limit to this deference. As he put it, “Conclusive deference, which amounts to judicial abstention, is plainly inappropriate.”
²⁴
Yet I am left with the unmistakable impression that Judge Ellis did exactly what he said he should not do. He allowed the president’s decision to serve as a substitute for his own independent judgment. He treated the president’s decision, much as the Mobbs affidavit did in
Hamdi,
as sufficient in itself to determine the legality of the executive’s action. In doing so, Judge Ellis in
Lindh,
much as the Fourth Circuit did in
Hamdi,
abdicated his responsibility under the Constitution.

Such abdication has not been confined to the disposition of claims by persons captured on the battlefield. In October 2002, the Court of Appeals for the Third Circuit acquiesced in a new deportation program of the attorney general that was justified in terms of war needs, though this time it was simply the ill-defined
War on Terror. The specific issue in this case—
North Jersey Media Group, Inc. v. Ashcroft
²⁵
—was whether newspapers or the public or even family or friends would be given access to deportation proceedings that had been designated by the attorney general as “special interest” cases. The attorney general feared that the access of the press or public might alert terrorists to the investigative tactics of the government or betray the precise knowledge that the government possessed.

The newspapers acknowledged that the right of access they claimed was only a qualified right that can be defeated by a special showing. In this context, acknowledging a right of access as a qualified right would allow the government to make a showing before the presiding judge in the deportation proceeding that special circumstances—including national security concerns—warranted closure. The presiding judge might, of course, agree with the government, but even if he or she did, the judge would be assuming responsibility for the closure. The Third Circuit, however, took that decision away from the individual judge by holding that the very designation by the executive of a national security interest in the proceeding defeated the right of access. The blanket judgment of the Third Circuit endowed the attorney general with the power to close deportation proceedings whenever he saw fit. There could be no particularized inquiry by a judge into the national security justification for closure in a specific case. Much like the Mobbs affidavit in
Hamdi
or the transfer of prisoners to Guantánamo, the attorney general’s designation brought the reason of the law to an end.

The tide may yet turn—let’s hope so. The Sixth Circuit has reached a different conclusion than the Third Circuit on the question of public access to “special interest” deportation proceedings.
²⁶
In the months following the symposium in Coral Gables, the Supreme Court agreed to review the
Al Odah, Hamdi,
and
Padilla
decisions.
²⁷
On December 2, 2003, the day before
filing its memorandum opposing the grant of the writ of certiorari in the
Hamdi
case, the government announced that it would, as a matter of discretion, allow the prisoner access to counsel subject to appropriate security restrictions.
²⁸
It pursued a similar strategy in the
Padilla
case, though in that instance it made the announcement on February 11, 2004, when it filed its reply brief in support of its application for the writ of certiorari.
²⁹
After the grant of the writ of certiorari in the
Al Odah
case, a panel of the Ninth Circuit found that Guantánamo was, in fact, within the sovereign jurisdiction of the United States.
³⁰
Moreover, although it remained to be seen what the capture of Saddam Hussein and the occupation of Iraq would bring, it is noteworthy that the administration had not yet moved the Iraqi prisoners it had captured to Guantánamo or chosen to designate them en masse as unlawful combatants.

Still, the challenge to law in the post–September 11 era is unmistakable. The Iraq War stands as an affront to the international legal system, and as is evident in the lower court cases I discussed, a number of good and able judges have renounced their most basic responsibilities under the Constitution. War always poses a challenge to law. It involves a pursuit of interests through violence rather than reason and often excites base fears and passions. The wars in Afghanistan and Iraq, and the most shapeless of all wars—the War on Terror—are not exceptions. A practice of lawlessness has grown in the shadow of these wars, and it poses a challenge for every law teacher.

The wars of the last two years have provoked protests and petitions, and, like the war in Vietnam, the Iraq War is likely to become the subject of national political contests. As citizens, we need to attend to such contests and make our views known, but never in a way that relieves us of our obligations as teachers of the law. We must stand within the law and test the government’s actions by the law. Such an endeavor may lack the drama that
the events of the day call for—it is detailed, patient work, fully based on reason—yet it may be our most enduring contribution.

Upon retiring from the Supreme Court, Thurgood Marshall was asked by a reporter how he wished to be remembered. Marshall answered with a spontaneity and immediacy that attested to the truth of what he was about to say: “He did what he could with what he had.”
³¹
He understood himself and the magnitude of his achievement, and in so doing provided a lesson for us all.

Prologue to Chapter 2

Trevor Sutton

“It was as profound a day in the court as any in a long time.” So wrote Anthony Lewis, a storied legal reporter and columnist for the
New York Times,
in a column published on June 29, 2004, the day after the Supreme Court handed down decisions in three cases arising out of the Bush administration’s War on Terror. The most significant of the three cases—and the one to which Lewis devoted most of his column—was the Court’s ruling in
Hamdi v. Rumsfeld,
which rejected the Bush administration’s claim that it had legal authority to classify and detain an American citizen as an “unlawful enemy combatant” without an evidentiary hearing. Lewis’s euphoric response to
Hamdi
captured the mood of much of the legal and media communities in the wake of the decision. The
Times
editorial page itself opined that the Court had “made it clear that even during the war on terror, the government must adhere to the rule of law.” The
Washington Post,
meanwhile, called
Hamdi
a “Supreme Rebuke,” and asserted that the case “sends a powerful message that Americans cannot just disappear at the hands of their government.” Many
other commenters seized on the language in Justice O’Connor’s plurality opinion that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Not all were convinced that
Hamdi
was a watershed, however. Ronald Dworkin, writing in the
New York Review of Books,
cautioned that commentators who heralded
Hamdi
as “a significant victory for civil and human rights” may have “overstated the practical impact” of the decision. Dworkin observed that the procedure rules set out in the plurality opinion “omit important traditional protections for people accused of crimes,” and added astutely: “The government may well be able to satisfy the Court’s lenient procedural standards without actually altering its morally dubious detention policies.” Yet even Dworkin could not help but optimistically declare that principles underlying the
Hamdi
decision could lead to “a much more powerful conclusion than the Court itself drew”: that beyond a certain point the government must choose between subjecting a detainee to a criminal trial and holding him as an enemy combatant. In 2015, with Guantánamo prison still open, such a reading of
Hamdi
seems rose-colored at best.

This chapter, “The War on Terror and the Rule of Law,” shares Dworkin’s mixture of relief and reservation. More than even Dworkin, the essay—originally delivered in 2005 as the H.L.A. Hart Lecture at Oxford University—sees
Hamdi
for what it is: a step back from disaster but not a cause for celebration, especially when read in light of the other two decisions handed down the same day as
Hamdi,
specifically,
Rumsfeld v. Padilla
and
Rasul v. Bush.
As the essay demonstrates, what most obviously united these three cases was, in fact, disunity—that is, the inability of the justices to form a majority over fundamental questions about the scope and applicability of the Constitution to the president’s wartime activities, both on and off the battlefield. With
Padilla
and
Rasul,
that disunity resulted
in inconclusive rulings that disposed of the detainee plaintiffs’ claims in a deeply unsatisfying and formalist manner. In
Hamdi,
the Court was bold enough to reach the merits of the case and to find that the president’s position was untenable; but, as Owen Fiss’s essay demonstrates, the justices could not agree on basic constitutional principles regarding the president’s power to detain American citizens. In that sense, if
Hamdi
was a rebuke, it was a garbled one.

There is another theme that draws these three cases together, one that bears directly on Fiss’s earlier work on the intersection of procedure and justice: the Court’s preoccupation with procedural questions at the expense of—or as a refuge from—issues of fundamental rights. This tendency was most obvious in
Padilla,
where the Court simply dodged Jose Padilla’s constitutional arguments by determining that the habeas petition was filed in the wrong district court. But it was also present in subtler ways in
Rasul
and
Hamdi.
In
Rasul,
the Court found that the foreign prisoners at Guantánamo had a statutory right to file a habeas writ without meaningfully addressing whether those prisoners had any constitutional rights to invoke in the first place. In
Hamdi,
the plurality’s much-lauded refusal to grant the president a blank check concerned only the process by which the Bush administration classified American citizens as unlawful enemy combatants. The plurality did not contest the concept of “unlawful enemy combatant” itself, and found that the executive had statutory authority to detain Hamdi for as long as “active combat” continues in Afghanistan.

A postscript to this essay is in order. In chronicling the approach the Bush administration brought to its legal and political campaign to deprive the Guantánamo prisoners of access to civilian courts, Fiss notes the government’s surprise decision to try Jose Padilla, a U.S. citizen, in federal court on a variety of charges, none of which was as grievous as the accusation that
allegedly justified his imprisonment—namely, the intention of setting off a dirty bomb inside the United States. After the publication of the essay, a federal jury in Miami found Padilla guilty of conspiring to kill Americans overseas and to provide material support to terrorists. When the district court sentenced Padilla to seventeen years in prison, Padilla’s mother expressed relief at the result. But this was not the end of Padilla’s saga: the Eleventh Circuit subsequently reversed the sentence on the reasoning that it was too lenient and sent the case back for resentencing. In September 2014, the district court gave Padilla a new sentence of twenty-one years.

Chapter 2

THE WAR ON TERROR AND THE RULE OF LAW

A
ll the world sighed. On June 28, 2004, the Supreme Court handed down its decisions arising from the so-called War on Terror. The decisions were greeted with a deep sense of relief. We had braced for the worst of all possible outcomes—an endorsement of the Bush administration’s position. Such a result would have betrayed the most elementary principles of American constitutionalism. It would have also left vulnerable many of the constitutional courts around the world that had relied upon American principles to justify the restraints that they had imposed on their governments’ counterterrorism policies. The Supreme Court must be credited with having avoided this outcome, and yet faulted for doing less than it should have.

The Court rendered three decisions. All three involved individuals who were imprisoned by the United States—in fact, held incommunicado for two years, with no access to family, friends, or counsel. All three cases put into question a fundamental tenet of the U.S. Constitution—what I will call the “principle of freedom.” This principle denies the United States the authority to
imprison anyone unless that person is charged with a crime and swiftly brought to trial. This principle is rooted in section 9 of Article I, guaranteeing the writ of habeas corpus—the historic means of testing the legality of detention—and, perhaps even more fundamentally, in the Fifth Amendment guarantee that no person shall be deprived of liberty without due process of law.

Over the years, the principle of freedom has been qualified to permit civil commitment proceedings, which allow the state to confine to a hospital or mental institution persons who are a threat to themselves or others. More recently, the principle has been adjusted to allow the United States to detain persons who might serve as material witnesses in a criminal prosecution or before a grand jury but who are likely to flee the jurisdiction. Presumably, such detention would be of limited duration. An even more fundamental qualification—and the one invoked by the government in these cases and recognized by international law—allows the armed forces to capture and imprison enemy combatants during ongoing hostilities.