The Rights of the People (51 page)

If the answer is yes, then it’s seen by the defense attorney, who must have a security clearance. But the defendant himself usually doesn’t get a look at it, except possibly in a censored or summarized form called a “substantial equivalent,” which conceals intelligence sources and methods. Some courts have extended this approach to live witnesses, who have been masked or assigned pseudonyms.

If the government says no to disclosure, the judge decides on a sanction,
which could be as minor as removing all the factual evidence that the concealed material would address, or as stiff as the dismissal of a count or a charge. It rarely comes to that, though, for as anyone who has dealt with security-minded censors quickly learns, negotiation over language and detail usually forges a solution.
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After its close study, Human Rights First concluded, “We are not aware of a single terrorism case in which CIPA procedures have failed and a serious security breach has occurred.”
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The disadvantages for the defendant include his inability to see the raw material—to confront the evidence, which may contain an exculpatory flaw that his lawyer wouldn’t notice. Even his lawyer doesn’t participate in the initial examination of the classified material, and judges and prosecutors can’t be expected to see relevance the same way as the defense.

Gathering intelligence and keeping it out of defendants’ hands were among Bush’s motives in designating two American citizens and one legal foreign resident as enemy combatants, subject to indefinite incarceration in military prisons without charge or trial. These might be called “internal combatants”—part of the family, so to speak, because they all had the legal right to live in the United States and were known in legal parlance as “U.S. persons” enjoying full constitutional protection. Two were actually arrested inside the country: the legal foreign resident and one of the American citizens; the second American was captured in Afghanistan. They were distinct from the external combatants, such as those in Guantánamo, who had been seized abroad and were not citizens.

Although the three were held incommunicado, lawyers managed to file habeas corpus petitions on their behalf, by which they invoked the venerable right to summon their jailers before a judge to justify the imprisonment. The Bush administration fought this vigorously, and ultimately lost. The framers had made the Great Writ of habeas corpus exceedingly resilient, first by placing it with legislative powers in Article I, suggesting that only the Congress could suspend it, and then only “when in Cases of Rebellion or Invasion the public Safety may require it.” Consequently, the Bush strategy found little traction in the courts.

The chief justice had ruled during the Civil War that Lincoln had no power, as president alone, to suspend habeas corpus,
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and, just after the war, the Supreme Court decided that military tribunals could not be used to try civilian citizens when civilian courts were functioning.
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During World War II, however, the Court ruled that the president could declare
a squad of German military infiltrators, including a naturalized American, enemy combatants and try them before military tribunals.
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These competing precedents carried the Court into the case of Yaser Esam Hamdi, raised in Saudi Arabia from the age of three, captured in Afghanistan, and transported to Guantánamo, where the military discovered his American citizenship when he mentioned that he’d been born in Louisiana. He was then transferred to American soil, first to the naval brig in Norfolk, Virginia, then to the brig in Charleston, South Carolina. The government alleged that he had fought with the Taliban, an assertion a federal district court judge found unsubstantiated, based on “little more than the government’s say-so.” His father contended in court papers that his twenty-year-old son, traveling for the first time alone, had gone to do “relief work” and had been “trapped in Afghanistan once that military campaign began.”

Hamdi had no lawyer and got one only because of a brief newspaper report that he had been flown from Guantánamo to Norfolk via Virginia’s Dulles Airport. The item was seen by the federal public defender in Virginia, Frank Dunham, Jr., who asked the court to be appointed counsel, then filed a habeas corpus petition on Hamdi’s behalf. But Dunham was not allowed to see his client until the case had worked its way up to the Supreme Court, and the brief was due. That was the government’s pattern: stall until the verge of embarrassment and defeat in the highest court, then yield as little as possible.

The conservative Fourth Circuit had ruled that Hamdi had no right to challenge, and the judiciary had no power to examine, his designation as an enemy combatant under which Bush claimed the authority to hold him indefinitely without charge, counsel, or trial. The government argued, remarkably, that such a detainee had sufficient opportunity during interrogation to deny that he was a combatant—that is, while possibly being tortured by the “enhanced interrogation techniques” that the government had secretly authorized.

In normal times, it could have been naturally assumed that no legitimate court could possibly have endorsed such an argument. But these were not normal times, and so those who cared about noble principles were reduced to awkward celebration when the Supreme Court reversed the Fourth Circuit and declared the obvious: that “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.”

It was a mixed opinion, however, interpreted by the left and the right
to suit their own purposes. Two overlapping majorities of the justices ruled that American citizens could be held as enemy combatants, under the measure passed by Congress a week after September 11 authorizing the president to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the attacks. However, the other majority found that since Congress had not suspended habeas corpus, the Fifth Amendment’s due process clause also gave a prisoner the right to challenge the detention. “There is no bar to this Nation’s holding one of its own citizens as an enemy combatant,” wrote Justice Sandra Day O’Connor, but only “once it is sufficiently clear that the individual is, in fact, an enemy combatant.” That finding may be made with looser standards than in a criminal court, the opinion continued, including second-hand evidence and a presumption of guilt, standards that could be employed by military commissions.
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Some conservatives took heart from this, most notably John Yoo, author of the infamous torture memo, who said that he saw it as “a 50-percent win for the government,” affirming its power to hold citizens as enemy combatants as long as some form of judicial review is accorded. By contrast, however, the most erudite conservative on the Court, Antonin Scalia, joined by the liberal John Paul Stevens, scoffed that the plurality of justices, “as though writing a new Constitution, comes up with 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 the judge and jury.”

Liberals focused on the fact that Hamdi had won his right to contest his imprisonment, and they hailed the most widely quoted line in O’Connor’s opinion: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
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After the decision, Dunham went to the military to negotiate Hamdi’s release, and four months later, the malignant enemy combatant turned suddenly benign, harmless enough to go free. With no solid evidence against him, the Bush administration dodged the Court-ordered fact-finding process by deporting him to Saudi Arabia. In exchange, Hamdi renounced the American citizenship that he had acquired automatically at birth in Louisiana, and which he’d never known was his until the military had told him so. Unlike Dunham, who called his own American citizenship “the most important and valuable thing to me in my life, the last thing I would give up,” Hamdi felt that he was giving up nothing and gaining
everything that mattered at that moment: an end to his imprisonment, which had lasted three years without charges. He also agreed to live in Saudi Arabia for five years; never travel to Afghanistan, Iraq, Israel, Syria, or Pakistan; and not sue the U.S. government.
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The Supreme Court’s decision in
Hamdi v. Rumsfeld
set in motion a small cascade of government capitulation. Both other cases of internal enemy combatants were eventually transferred to the criminal courts, but only after years of further delays and maneuvers by the Bush administration’s ideologues, who treated each Court opinion as if it set no precedent and carried no impact beyond the specific defendant. This was a kind of constitutional apostasy, a defiance of the intricate culture of willing compliance with the rule of law. It did not take a scholar to see that what the Court said about Hamdi’s right to habeas corpus would apply to the two others seized as enemy combatants, but the president and his men ignored and evaded adverse rulings to the extent possible.

The other American, Jose Padilla, was arrested at Chicago’s O’Hare Airport on May 8, 2002, after flying in from Zurich. His name had been mentioned during the interrogation of Abu Zubaydah, a training camp personnel clerk originally thought to be third or fourth in the al-Qaeda hierarchy,
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who described Padilla as part of a plot to detonate a “dirty bomb” that would spread radioactivity somewhere inside the United States.
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Padilla had been convicted for murder as a juvenile and then for gun possession in Florida. He converted to Islam in prison, moved to Egypt after his release, and traveled to Saudi Arabia, Pakistan, and Afghanistan, where in 2000 he allegedly enrolled in an al-Qaeda camp.

He was held for a month in civilian custody as a material witness, which is why he was assigned a lawyer by the court, but was then designated an enemy combatant by Bush and spirited away to isolation in the navy brig in Charleston, as the White House asserted the president’s power to keep him locked up indefinitely without charges or trial. Bush’s declaration, “based on the information available to me from all sources,” came in a censored one-page order completely devoid of evidence or specifics.
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The “sources” turned out to be Zubaydah and at least one other captive whose information was tainted by torture. The unverified statements from interrogations kept Padilla in the brig for one year and eight months before he saw an attorney, and three years and eight months before finally being turned over to the criminal justice system for indictment and prosecution.

The decision to use the courts was effectively forced by the courts. While Padilla’s habeas corpus petition was working its way through the federal judiciary, the Supreme Court granted Hamdi’s habeas appeal. Rather than argue essentially the same case again, the government delayed, then finally transferred Padilla to the criminal justice system, though not until shortly before his appeal was to be heard by the Supreme Court.
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He claimed that he was tortured in the brig. But his statements, evidently coerced, were touted by officials as evidence of al-Qaeda plots foiled. These included the “dirty bomb” scheme, training by al-Qaeda in explosives, and a plan to “undertake a mission to blow up apartment buildings in the United States using natural gas,” a Senate committee was told by Deputy Attorney General James Comey. During interrogations, he allegedly admitted to laying plans with Khalid Sheikh Mohammed and other prominent al-Qaeda figures.
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This may have been true, but it was impossible to know, since the information was given under duress, a process the military didn’t want disrupted. “Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence gathering tool,” said the head of the Defense Intelligence Agency, Vice Admiral Lowell E. Jacoby, in arguing that Padilla should be denied access to a lawyer. “Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example—even if only for a limited duration or for a specific purpose—can undo months of work and may permanently shut down the interrogation process.”
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In the Charleston brig, Padilla was manipulated with threats of being sent to another country or to Guantánamo Bay, his attorney contended in a brief. Using various techniques, military interrogators maneuvered him into helplessness: a pillow and sheet would be provided, then removed; a mirror would be given, then taken away; he was kept in bright lights, then in complete darkness, locked in a cold cell, denied a shower for weeks, allowed to exercise only at night.

“He was threatened with being cut with a knife and having alcohol poured on the wounds,” according to the brief. “He was also threatened with imminent execution. He was hooded and forced to stand in stress positions for long durations of time. He was forced to endure exceedingly long interrogation sessions, without adequate sleep, wherein he would be confronted with false information, scenarios, and documents to further
disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla. Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.”
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(Drugging was banned by the Justice Department guidelines on torture.)

This may have explained the military’s restrictions when he finally got to see an attorney. Just before the Supreme Court was expected to decide whether to hear the case, the government suddenly defused a key issue by calling one of his lawyers, Andrew Patel, to say that he and his colleague could see their client. But there were conditions: They could not ask Padilla any questions about the conditions of his incarceration, and the entire conversation would be audiotaped and videotaped while an officer stayed in the room, a breach of attorney-client privilege.