A War Like No Other (7 page)

All three cases before the Court were removed from an active theater of combat. One involved an American citizen—Jose Padilla—who was first arrested at O’Hare Airport in Chicago as he alighted from a plane.
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He had arrived in Chicago from Pakistan via Switzerland. He was immediately taken to New York and then transferred to a naval brig in Charleston, South Carolina. The second case also involved an American citizen—Yaser Esam Hamdi.
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He was first arrested in Afghanistan, taken to Guantánamo Naval Station, later transferred to a naval brig in Norfolk, Virginia, and finally, after the grant of certiorari by the Supreme Court, brought to the same naval brig in Charleston in which Padilla was being held. The third case involved a group of Australians and Kuwaitis who were first seized in Afghanistan and Pakistan and then imprisoned at Guantánamo.
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In all three cases, the prisoners, acting through various
representatives—some self-appointed, others appointed by the trial courts—sought writs of habeas corpus to challenge the legality of their detention, and in doing so invoked the principle of freedom. The government maintained that the prisoners were enemy combatants—one was allegedly affiliated with al-Qaeda and the others were said to be soldiers of the Taliban. All the prisoners denied the government’s charges and demanded a meaningful opportunity to contest the factual basis of their detention. Admittedly, if the government failed to prove that they were enemy combatants, the government might still be able to detain them. The principle of freedom is not an absolute or unconditional protection of freedom but, rather, tightly identifies the circumstances under which an individual may be deprived of his or her freedom. If the prisoners were not enemy combatants, then the government would have the burden of charging them with a crime. Requiring the government to proceed in this way would bring into play the protections of the Sixth Amendment that specifically govern criminal prosecutions, including a speedy trial, trial by jury, the right to cross examination, proof beyond a reasonable doubt, and the right to counsel. A criminal prosecution would also fully reveal, beyond the numbing drumbeat of war, the gravity of what the government had in mind for these individuals—incarceration for a substantial period of time.

By the time these cases reached the Supreme Court, the government was prepared to recognize the right of the two prisoners who were American citizens—Padilla and Hamdi—to seek a writ of habeas corpus. The government sought to reduce this right, however, to a mere formality. The government insisted that there should be no evidentiary inquiry into the prisoners’ claim that they were not enemy combatants; an affidavit from an official in the executive attesting to Padilla’s and Hamdi’s status as enemy combatants was, according to the government, in and
of itself a sufficient basis for denying the writ. The demand for unlimited power on the part of the government was even more extreme in the case of the Australians and Kuwaitis. The government insisted that those prisoners had no right even to apply for a writ of habeas corpus, or, put differently, no federal court had jurisdiction to grant the writ. Although the Supreme Court did not embrace all these audacious and somewhat startling demands for executive power, it failed to vindicate the principle of freedom.

A Technical Dodge

Padilla’s habeas petition struck a note of urgency. The government held him as an enemy combatant, but the war that the government had in mind was not the kind that had been fought in Afghanistan and for which international law allows belligerents to detain enemy combatants. Rather, it was the vast, ill-defined, and never-ending War on Terror. Political rhetoric had been confused with a rule of law. Moreover, by the time the Supreme Court ruled on his petition in June 2004, Padilla had been imprisoned for more than two years. For most of that period he was held incommunicado, without access to family or counsel. Only after the grant of certiorari did the government allow Padilla access to counsel. The purpose of such extended isolation had long been manifest. In an affidavit filed in open court, Vice Admiral Lowell E. Jacoby, the director of the Defense Intelligence Agency, explained that the total isolation of Padilla for such an extended period was necessary to cultivate a complete sense of dependency in Padilla on his interrogators and to ensure that Padilla was convinced of the hopelessness of his situation.
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At the time Jacoby swore to the affidavit, Padilla had already been held incommunicado for seven months.

According to the government, Padilla was associated with
al-Qaeda and was planning to engage in terrorist acts in the United States, including the detonation of a device—known as a dirty bomb—that would disperse radioactive material. The government’s claim was supported by nothing more than an affidavit of an official in the Department of Defense, which contained multiple layers of hearsay. The federal district court in New York ruled that Padilla had a right to an evidentiary hearing to contest the veracity of the affidavit, and provided him with access to counsel for that purpose. The judge did not ground the right to counsel in the Bill of Rights, either the Due Process Clause of the Fifth Amendment or the Sixth Amendment’s guarantee of the right to counsel in criminal prosecutions. Rather, he gave Padilla access to counsel simply as an exercise of his power to hold a hearing on Padilla’s habeas petition.
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The Court of Appeals went even further. Concluding that Padilla was being unlawfully detained, it ordered his release unless he was transferred to civilian authorities and either held as a material witness before a grand jury or charged with a crime.
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Refusing to address the lawfulness of Padilla’s detention in any way, the Supreme Court simply ruled that Padilla’s lawyer had filed the habeas petition in the wrong district court. Padilla had been brought from Chicago to New York on a material witness warrant requiring him to testify before a grand jury. The district judge in New York who had issued the material witness warrant appointed counsel to represent Padilla before the grand jury. Padilla in fact consulted with counsel, but two days before a scheduled hearing on a motion to contest his arrest on the warrant, the Department of Defense took custody of him and transferred him to the naval brig in South Carolina—all without prior notice to Padilla’s counsel. Upon learning that Padilla was in the custody of the department, Padilla’s lawyer immediately filed a habeas petition in New York in order to contest the legality of his detention, naming the secretary of defense as the
respondent. In an opinion by Chief Justice William Rehnquist, the Supreme Court held that under the relevant statute the habeas application should have been filed in South Carolina, not New York, and that the proper defendant was not the secretary of defense but, rather, the commander of the Charleston brig. Padilla remained imprisoned, and his lawyer was required to begin the habeas proceeding once again.

The commander of the Charleston brig is a subordinate of the secretary of defense and fully subject to his control and discretion. The requirement that the commander be named as the respondent to the habeas petition is of no independent significance; it is derived from the more general rule requiring a prisoner to bring a habeas petition in the district in which he is confined. This rule allocating work among the federal district courts seeks to assign the habeas petition to the court where a hearing might be most conveniently held and also to prevent forum shopping by prisoners. On previous occasions, exceptions had been made to this rule, but Chief Justice Rehnquist insisted that those exceptions were not applicable in Padilla’s case. Although this might indeed be true, Rehnquist did not explain why the Court could not create yet another exception. As the dissenters bitterly complained, the facts of Padilla’s situation—the surreptitious transfer of custody from civilian to military authorities—were sufficiently unique to allow the Court to create another exception without enabling prisoners to shop for the most hospitable judge and without threatening the overall aims of Congress in distributing the responsibility for habeas writs among the district courts.

The responsibility of the Court to address the merits of Padilla’s claim to freedom stands, however, independent of whether an exception should have been made to the rule for allocating habeas petitions among the district courts. The choice between the South Carolina and New York district courts did
not raise any problem of subject-matter jurisdiction, and thus the government implicitly conceded that the petition was within the province of competence of the federal judiciary. As a result, the Supreme Court had full authority to rule on the merits of Padilla’s claim for freedom, even if the habeas proceeding had been commenced in the wrong district court. Even more, Padilla’s claim would remain the same no matter in which district court the case was commenced. It is therefore difficult to perceive how justice was served by requiring Padilla’s lawyer—after Padilla had been confined incommunicado for two years—to start the proceedings afresh. Sometimes we accept the Court’s forbearance as a matter of judicial statesmanship, but here my sentiments are of another sort. Given the stakes for the individual and the nation, the failure of the Court even to address the merits of Padilla’s claim of freedom was, pure and simple, an act of judicial cowardice.

The institutional failure of the Court was manifest at the moment of decision. Subsequent developments only aggravated the offense. Following the Court’s decision, Padilla’s lawyers filed a new habeas petition in the South Carolina district court. The South Carolina district court granted Padilla’s petition, but the Fourth Circuit reversed, affirming the summary power of the government to detain Padilla as an enemy combatant. With that victory in hand, and only days before it had to respond to Padilla’s petition for a writ of certiorari, the government reversed its strategy. It filed a petition in the Fourth Circuit declaring its intention to transfer Padilla from military to civilian custody and to try him on criminal charges in a district court in Florida.

This stunning turn of events occurred on November 22, 2005. On that day—almost three and a half years after his initial arrest (May 8, 2002) and sixteen months after the Supreme Court declined to rule on the merits of Padilla’s petition (June 28, 2004)—the principle of freedom was in effect vindicated. The
government took upon itself the burden of charging Padilla with a crime, and by that act brought into play all the strictures of the Bill of Rights, including the provision guaranteeing Padilla access to counsel and a speedy trial. Of course, justice delayed is better than no justice at all, but the government never satisfactorily explained why it took this action so belatedly—only just before it would have been obligated, for a second time, to justify its position before the Supreme Court. Could it be, as the author of the Fourth Circuit opinion denying the government’s petition later charged, that the government feared a reversal by the Supreme Court?
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The decision of the government to downgrade the charges against Padilla was also puzzling. The secretary of defense had initially charged Padilla with plans to detonate a radioactive device in the United States. The secretary maintained that stance and supported it with affidavits from subordinates throughout Padilla’s protracted efforts to secure his freedom—which had lasted over three years and involved the Southern District of New York, the Second Circuit, the Supreme Court, the District Court for South Carolina, and the Fourth Circuit. The indictment against Padilla filed in November 2005 made no mention of his alleged plan to detonate a radioactive device in the United States. The charges now against him were “conspiracy to murder, kidnap, and maim persons in a foreign country,” and providing “material support for terrorists.” Before the press, the government defended its shift on the ground that pursuit of the original charge would have jeopardized vital intelligence sources, but many commentators questioned the truthfulness of that explanation.

In his habeas petition, Padilla maintained that his confinement violated a 1971 federal statute known as the Non-Detention Act. This statute can be viewed as a watered-down version of the principle of freedom. It is aimed at avoiding a repetition of
the horrors arising from the detention during World War II of persons of Japanese origin then resident in the western United States. I say “watered-down” because the statute applies only to citizens (the Japanese interned in World War II included non-U.S. citizens as well as citizens) and because it required not that the prisoners be charged with a crime but only that the detention be authorized by Congress. As such, the law appears more concerned with unilateral action by the executive than vindicating the principle of freedom. It provides that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
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In the original habeas proceeding, the Second Circuit held that Padilla’s confinement violated the Non-Detention Act. This was a bold advance over the decision of the District Court for the Southern District of New York, which did not put the government to the burden of filing criminal charges against Padilla, but rather required only an evidentiary hearing on the question of whether he was an enemy combatant, and allowed indefinite detention if that charge were proved. The Second Circuit ruling was still limited, however, as it only governed situations like Padilla’s that involved a citizen seized in the United States. The Second Circuit specifically declined to address whether the Non-Detention Act had any force for American citizens captured on the battlefield.
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Watered-Down Due Process

Like Padilla, Yaser Hamdi—the prisoner in the second of the terrorism cases—also relied on the Non-Detention Act, but there was a crucial difference. Although Padilla, much like the Japanese who were interned, was taken prisoner in the United States, Hamdi was seized in Afghanistan, which, at the time of his capture (October 2001), was a zone of active combat. Yet
Justice Sandra Day O’Connor, writing for herself and three other Justices (William Rehnquist, Anthony Kennedy, and Stephen Breyer), held in
Hamdi
that even assuming that the 1971 act applied to American citizens captured on the battlefield, the specific requirement of the act—that the detention be authorized by statute—was satisfied. To that end, she relied upon a statute (Authorization for the Use of Military Force) that was passed by Congress one week after September 11, and used by the executive as the declaration of war against Afghanistan. It authorized the president to use all necessary and appropriate force against nations, organizations, or persons associated with the September 11 terrorist attacks.
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