Making Our Democracy Work (32 page)

The Court made clear that precedent did not require it to decide in the government’s favor. Precedent alone was too ambiguous to answer the question by itself; and, finding the legislative history of the habeas statute of little help, the Court tried to determine, hypothetically, what Congress
would have wanted
had it actually considered the matter. How far would Congress have wanted the habeas statute to reach? The Court’s consideration of statutory purposes turned to more basic and practical questions.
¹¹

For the Court, the writ’s basic critical role in protecting freedom
argued strongly for a more expansive interpretation of the statute. The Court quoted Justice Jackson:

Given the constitutional importance of protecting individual rights, the writ’s historic role in helping to do so, and the Constitution’s own reference to that importance, the Court thought that Congress would likely have favored an expansive interpretation of the habeas statute—at least other things being equal.
¹²

On this point the Court’s six-member majority (which I joined) and the three dissenting justices disagreed. The dissenters thought that other things were not at all equal. They feared that an interpretation of the habeas statute that permitted the district court in this case to consider the Guantánamo prisoners’ habeas petitions would also permit courts in other cases to consider petitions filed by other prisoners of war, including any equivalent to the millions of enemy combatants that the Allies imprisoned during World War II. If so, they asked, how could the military run the war?

The dissenting justices were concerned that the Court’s holding read the habeas statute as extending to “aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts.” This, they thought, was a “breathtaking” expansion of habeas jurisdiction. If every prisoner of war could hire a lawyer and sue for release, how could army commanders organize a battle? How could inexpert federal courts oversee a significant “aspect of the Executive’s conduct of a foreign war”?
¹³

Although the Court majority did not deny the importance of these practical considerations, it also thought they did not require the dissenters’ interpretation of the statute. Allowing Guantánamo prisoners to file habeas petitions need not interfere with the decisions of the president and the military during wartime or other national emergency.
For one thing, as Justice Kennedy’s concurrence pointed out, Guantánamo is
not
a foreign battlefield. It is “far removed from hostilities” and “is in every practical aspect a United States territory.” To find that imprisonment at Guantánamo falls within the habeas “jurisdiction” of the federal courts tells us nothing about petitions filed under battlefield conditions, or other petitions filed concerning imprisonment outside the United States.
¹⁴

In addition, the decision held only that a federal court
may consider
a habeas petition filed by a Guantánamo prisoner. It did not tell the court how to determine the merits of that petition. That court might take military needs, military expertise, and many other factors into account when it decided whether circumstances warranted
granting
the petition and
releasing
the prisoner. These matters were not before the Court, and its opinion said nothing about them.

Within the limits of the question before the Court—regarding the prisoners’ right to
file
the petition—the Court gave greater weight to the importance of ensuring a prisoner access to the courts than to the risks of unwarranted interference with a president’s congressionally authorized attempts to deal with a serious problem of national security. The detainees could file their habeas corpus petitions.

The upshot: The Court tried to interpret a silent statute consistently with a reasonable view of what Congress would have intended. It limited the president’s power, but only to the extent that an individual detained at Guantánamo could file a habeas petition in federal court. It found a way to hold the president accountable to this limited extent while leaving much to be worked out later, perhaps by a district court, such as the extent to which foreign detainees have the same rights as American citizens. Furthermore, because the Court simply interpreted a statute, Congress would remain free to enact a new statute expressing a different view of its intentions—consistent with the Constitution.

O
N THE DAY
the Court decided
Rasul
, it also decided
Hamdi
. The facts of
Hamdi
were special. Yaser Esam Hamdi was an American citizen
born in Louisiana. As a child he had moved with his family to Saudi Arabia, and as an adult he traveled to Afghanistan. Allied forces captured him during the fighting there and sent him to Guantánamo. But in light of his American citizenship, defense authorities transferred him to a navy prison in South Carolina.
¹⁵

Hamdi’s father filed a habeas corpus petition on his son’s behalf in a federal district court in Virginia, claiming that he was simply a relief worker in Afghanistan. The government replied by producing a statement signed by an army official, which said that Hamdi had been “affiliated with a Taliban military unit,” had “received weapons training,” had “engaged in battle,” and had “surrender[ed] his Kalashnikov assault rifle” to the allied forces who captured him.
¹⁶

The district judge noted that the government’s evidence consisted solely of hearsay and held that the evidence was not adequate. (The law often considers this kind of secondhand evidence less reliable than direct testimony and often bars its use at trial.) The court of appeals disagreed. It held that the evidence was sufficient to permit Hamdi’s detention. Then the Supreme Court agreed to hear the case.
¹⁷

Because Hamdi was imprisoned in South Carolina, no one doubted his right to
file
a habeas corpus petition in a federal court. As Justice O’Connor wrote in her opinion (which I joined), “All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States.” It is a “critical check on the Executive, ensuring that it does not detain individuals except in accordance with law.” And, in petitioning for a writ of habeas corpus, “Hamdi was properly before [a federal] court to challenge his detention.”
¹⁸

At the same time,
Hamdi
presented fundamental questions about
how
the courts should handle these petitions. Hamdi’s petition claimed that his detention violated the Constitution. The government responded that the Constitution permitted it to classify him as an enemy combatant and to hold him without filing formal charges until it decided whether further proceedings were warranted. The case presented the Court with two basic, related questions. First, does the Constitution permit the government to hold an American citizen as an enemy combatant? Second, if so, what procedures does the Constitution
require the government to follow where the matter is contested? What evidence is necessary to determine who is telling the truth?

The Court answered the first question by holding, 5 to 4, that the Constitution did permit the government to hold enemy combatants during time of war and also to classify an American citizen as an enemy combatant. The Court pointed in support to a similar World War II case involving German sailors, some of whom had been born in America. Four of the five members of the majority in the
Hamdi
case (including me) added that the length of detention “may last no longer than active hostilities.”
¹⁹

Two dissenting justices agreed with the majority that the president could detain American citizens as enemy combatants, but they thought the president could do so only if Congress enacted a statute delegating this power, which, in their view, Congress had not done. Two other dissenting justices thought that the Constitution forbids the president to detain American citizens unless “criminal proceedings are promptly brought, or … Congress has suspended the writ of habeas corpus.”
²⁰

The second question concerned Hamdi’s claim that he was a relief worker, not an enemy combatant. What procedures did the Constitution require the government to follow, what evidence must it present, in order to resolve this claim? In answering these questions, the Court tried to reconcile its own constitutional role as a guardian of the Constitution’s “fair procedure” requirements with the national security roles of Congress and the president. In doing so, a majority of the Court rejected the government’s claim that it had provided Hamdi with fair procedures and provided sufficient evidence.

Justice O’Connor’s opinion (for four members of the majority and which I joined) took as its “starting point” the “fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law.” It added that “ ‘in our society liberty is the norm’ and detention without trial ‘is the carefully limited exception.’ ” It is “during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”
²¹

Although the Constitution recognized that “core strategic matters
of warmaking belong in the hands of those who are best positioned and most politically accountable for making them,” it also recognizes the “time-honored and constitutionally mandated” role of courts. Unless “Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions.”
²²

Justice O’Connor continued:

Thus, a “judicious balancing” of interests was required. An approach that will work, even “in the enemy-combatant setting,” requires the Court to ensure the
“core elements”
of procedural fairness, but otherwise allows the executive to “tailor” enemy combatant proceedings “to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.”
²⁴

The “core elements” of procedural fairness include the right of a “citizen-detainee” challenging his classification as an enemy combatant to “receive
notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”
As for other elements: military “exigencies” may sometimes demand “tailor[ing]” procedures to meet the needs of an “ongoing military conflict,” perhaps to the point of using military tribunals, weakening hearsay rules, or applying pro-government assumptions. But, the plurality added, none of these matters need be decided now.
²⁵

In sum, the Court in
Hamdi
assured the president that, with congressional assent, he had authority during time of hostilities to take and to hold enemy combatants, including American citizens fighting against their country. At the same time, the Court exercised its constitutional
role as guardian of the Constitution’s procedural protections. It insisted on the application of the basic elements of procedural fairness while also seeking to ensure that the resulting procedures helped make democracy workable. In doing so, it was exceedingly practical. It took account of comparative institutional expertise, including practical considerations of workability in the particular military circumstances. It postponed any decision about particular detailed procedural requirements, and the flexibility of those requirements, leaving those for the time being to the lower courts.

A
FTER THE
C
OURT
decided
Rasul
and
Hamdi
, the Defense Department authorized Guantánamo detainees to obtain lawyers and file habeas corpus petitions. Almost all of them did. Meanwhile, the department created special military Combatant Status Review Tribunals, made up of three neutral commissioned officers, and gave each detainee the opportunity, with the help of a military representative, to contest his enemy combatant status before the tribunal. If the detainee later obtained new information, he could present it to the Administrative Review Board and explain why he no longer posed a threat (or why he never did) and why he should be released or transferred.
²⁶

At the same time, a presidential order subjected to trial before a “military commission”—a body not often used in the nation’s history—any noncitizen who the military had reason to believe was a member of Al Qaeda or had “engaged or participated in terrorist activities aimed at or harmful to the United States.” These special commissions, appointed by the military, allowed the individual before them fewer procedural protections than ordinary courts-martial or civilian courts provide defendants. For example, they could admit reasonably probative hearsay evidence; they could deny the detainee access to certain evidence; and they could exclude him from the proceeding when certain evidence was presented.
²⁷