by John Yoo
Milligan, a 5-4 case with the Chief Justice in dissent, identifies when the military cannot detain citizens: when they have not joined the enemy and are located away from the battlefield, where the civil courts are open. Milligan contains much stirring language, often quoted by civil libertarians, about the rule of law and the excesses of wartime zeal. The Court observed that the "Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism."28 All quite true. The Court recognized, however, that the Constitution grants the government the power to respond to attack, and that this includes the power to suspend habeas corpus or impose military rule in areas under attack.
Milligan's protections do not reach citizens who have actually joined enemy forces. Nor do they extend to detainees, citizen or not, at the front or on battlefields abroad. Otherwise, the Union could not have fought the Civil War, because the courts should have ordered President Lincoln to release thousands of Confederate POWs and spies. Obviously, this did not happen during the Civil War, nor afterward. The Court also decided Milligan on December 1, 1866, well after the end of hostilities, continuing the judicial practice of waiting until the end of a conflict to do anything that might interfere with ongoing military operations.
Almost eighty years later, the Supreme Court affirmed this understanding of the President's war power, in a case involving Nazi saboteurs. In June 1942, eight Nazi agents secretly landed on Long Island, New York, and in Florida, with plans to attack factories, transportation facilities, and utility plants. All had lived in the United States before the war, and two were American citizens.29 One of the Nazis decided to turn informer. After initially dismissing his story, the FBI arrested the plotters, and their capture was revealed at the end of June. President Roosevelt established a military commission and the Supreme Court ultimately entertained a habeas petition in the case of Ex Parte Quirin.30 The captured saboteurs argued that they should be released from military custody because, like Milligan, they were citizens, the civilian courts were open, and they were captured within the United States, far from any battlefield. The Court rejected these arguments and upheld FDR's decision to try them--even those who may have been born in the United States and were presumably American citizens--before a military court.
In doing so, the Court adopted the understanding of Milligan outlined above. What is important, the Quirin Court said, is not so much the time or place of the enemy combatant's capture, or the manner of capture, or even the combatant's citizenship, but whether in fact he is a member of the enemy's forces. In a unanimous holding, the Court held that individuals, regardless of citizenship, who "associate" themselves with the "military arm of the enemy" and "with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war."31 Quirin flatly declared that the government could detain enemy combatants regardless of whether they were citizens or not: "Citizenship in the United States of an enemy belligerent does not relieve him of the consequences of a belligerency which is unlawful."32 Milligan was not a belligerent because he had never associated with the enemy armed forces.33
Padilla and Hamdi's lawyers tried to argue that the American military can detain only uniformed members of regular armed forces captured on the battlefield.34 This contention is blind to the realities of the post-9/11 world, tying our hands precisely because our enemy, in disguise, targets civilians on our own soil. This is nothing but an invitation to al Qaeda to stop trying to fight anything resembling a conventional battle. No more Tora Boras--just more World Trade Centers.
As if talking about al Qaeda itself, the Quirin Court said that "those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants."35 Legally, the Padilla case is virtually identical to that of the Nazi saboteurs.
Critics of the war also argue that military detention is illegal and unconstitutional because it is "indefinite."36 Military detention is only indefinite because there is no criminal conviction and sentence. "Indefinite" does not mean "forever." The United States has released many Gitmo detainees who have been determined to no longer pose a threat. They have been mostly released to the governments of their countries of origin, once appropriate assurances have been obtained that they will not be released to renew their combat.37
Some critics contend that detention without knowlege of the release date amounts to cruel or inhuman treatment in itself. This claim flies in the face of centuries of wartime practice. Under the rules of war, nations have always held enemy combatants until "the cessation of active hostilities."38 In war there is no requirement of a fixed time period like a criminal sentence to detain the enemy, nor any requirement of a "trial" to fix any such "sentence." At least there was none until the Supreme Court suggested it might create one, for the first time in history, in the Hamdi case. This has since been mooted by the 2005 Detainee Act. Combatants have historically been detained until the end of a conflict so they cannot rejoin the fighting. No POW has ever had any idea on what date he would be released. In this, al Qaeda and Taliban fighters detained at Guantanamo Bay are no different.
While the war with al Qaeda has been going on for five years, and while it's hard to imagine a peace treaty, hostilities will end at some point. American wars have been short by historical standards. But FDR did not know in 1942 that World War II would last only three years, nor could Lincoln have predicted in 1861 that the Civil War would last four years. There have been much longer wars, such as the Iran-Iraq war and American involvement in Vietnam, not to mention the Thirty Years' War or the Napoleonic Wars. Just because those wars were long did not mean that nations lost their right to detain captured enemy combatants. Just because the war on terrorism has proven longer and in some ways more difficult than previous American wars does not require that we release or try al Qaeda operatives.
Defeating al Qaeda will take longer than five years, but there is no reason to believe it will go on for a generation. Only those who imagine that the war against al Qaeda is a war against a persistent social problem, like the war on drugs or the war on crime, can honestly believe that the conflict will never end. Our current conflict is with al Qaeda, and we can declare hostilities over when it can no longer attack the United States in a meaningful way. Then the United States can transfer al Qaeda prisoners to the custody of their national governments.
Civil libertarians liken the case of Padilla or Hamdi to FDR's internment of Japanese-Americans.39 There is no parallel with Korematsu, the 1944 case in which the Supreme Court upheld the detentions. The Japanese-Americans detained by FDR were American, not enemy, citizens, whose disloyalty was assumed solely because of their ethnicity. Today our military has detained no one because they were Arab or Muslim, but only those who have been caught on a battlefield or working with al Qaeda. Of the three Americans detained as enemy combatants, one was Hispanic, one Caucasian, and one Arab.
Critics also argue that the Anti-Detention Act of 1972, which prohibits the peacetime detention of Americans without criminal charge or other authorization by law, says that only Congress may authorize detentions.40 Padilla's lawyers claimed it was enacted specifically to repudiate the Japanese-American internment and emergency detention laws against spies and saboteurs.41 Thus, they say, if President Bush has the power as commander in chief to detain enemy combatants at war, which they do not concede, this power does not extend to suspects at home, who must be handled under rules set by Congress.
The lesson of September 11, reinforced by the AUMF, the logic of Hamdi, and the P
atriot Act's removal of the artificial Wall between foreign and domestic intelligence, was that mere geography or even citizenship can no longer divide the powers of war from the powers of peace. Al Qaeda operatives had launched the attacks from within the United States by hijacking American airliners. They had succeeded where the Nazi saboteurs had failed. The Constitution would not have disabled the President and Congress from confronting a threat all the greater when waged by enemy operatives on American soil. Under Quirin, the President has clear authority to detain enemy combatants, even citizens, in wartime. But control over the federal criminal laws rests with Congress. Interpreting the law to prevent the President from military detentions merely because the enemy has been found in the United States would provoke a direct conflict between the constitutional authorities of the two branches. With the Anti-Detention Act, Congress hoped to prevent detentions of loyal citizens, not the enemy, in time of war.42 Congress's AUMF implicitly included the power to detain enemy combatants.43 Civil libertarians are arguing that Congress authorized the military to shoot to kill enemy combatants, but not to capture and detain them.44
Civil libertarians, not the Bush administration, seek a radical reordering of our system for making war. They demand a new role for Congress and the courts in overseeing basic military decisions. The most radical deny that the Constitution grants any role to the President in conducting war, foreign affairs, and national security policy. Congress, they say, should pass a law on every aspect of the use of force, not in the AUMF's general terms, but only in declared specifics, such as the power to gather intelligence, to use force, to detain the enemy, to accept surrender, to interrogate, to release detainees, and so on.
As noted earlier, this is an ironic reversal on such critics' usual complaints. When Congress delegates to the President in far less serious matters, such as regulating industry and the environment, they argue the opposite, that everything should be delegated to the agencies within the executive branch.45 If the Constitution gave Congress and the President flexibility and discretion in anything, it was the conduct of war. Put differently, Hamdi, Padilla, and their civil libertarian allies want to all the laws and all the historical precedents of war to contain a brand-new exception for everything that occurs on American soil or involves Americans who join the enemy. After enemy combatants have carried out the deadliest attack on American soil in history, an attack the enemy is determined to repeat using covert means, this would make no sense at all. This position takes "rights talk," as author and legal scholar Mary Ann Glendon terms it, to an illogical extreme.
The law is not the same as policy. Whatever the government's legal right or power to detain, it might, if it chose, use the criminal justice system, much as it had prior to 9/11. Had it wanted to, it could have reserved military detention only for members of the Taliban captured fighting in Afghanistan. These are policy decisions for our elected decision-makers. So why did the President and Congress choose otherwise?
Consider first the incentives. Al Qaeda would focus on recruiting American citizens and on conducting covert operations on American soil. The most dangerous covert operations against American civilians would become the easiest for our enemy to carry out. Osama bin Laden offered John Walker Lindh the role of a suicide bomber precisely to exploit his Western identity, cover, and access. Al Qaeda recruited Jose Padilla for the same reasons. The last thing our government should do is give an advantage to operations on American soil for spies and saboteurs to conduct terror attacks.
Al Qaeda members with American citizenship could easily refuse to disclose their secrets by pleading the Fifth. Proof sufficient to meet the probable cause standard would have to be collected before they could be arrested. Americans with no previous criminal record who have carefully refrained from communicating with al Qaeda once in the United States could, for all practical purposes, never be identified and confined, short of pure luck. Luck is not going to protect us from this determined adversary.
Military detention is also one of our most important sources of intelligence, which in turn is our most important tool in this war. We will need to know who they are, where they are, who is helping them, and what they are planning, which will require surveillance, interrogation of captured enemy combatants, captured computers and documents, and undercover agents. And we need to maintain secrecy about the means and details of these captures and what we learn from them.
Should enemy combatants have the right to a lawyer? The demand for access to counsel seems reasonable enough at first glance--it is certainly one of the bedrock rules of due process in the American criminal and civil justice systems, ingrained into the popular imagination by TV cop shows and crime movies. Our criminal justice system assumes that truth emerges from the clash between prosecution and defense. It tilts the playing field against the government and in favor of the suspect. All relevant witnesses and evidence must be publicly presented in court, and lawyers help their clients exercise their right to say nothing that might incriminate them.
Introducing a lawyer right after capture, as Judge Doumar ordered in Hamdi, would essentially stop the questioning of enemy combatants. The defense lawyer's first action would be to order his client to say nothing to the government. This is perfectly appropriate in the criminal justice system. Invoking one's right to remain silent and to have access to counsel is protected by the Bill of Rights, which represents society's decision that we want the government to prove with a high level of certainty that someone is guilty, without relying on evidence that comes unwillingly from the defendant. Our society has decided that it is strong enough to withstand the occasional individual criminal who is set free.
This is not the case in war. Even under the Geneva Conventions, which do not apply to al Qaeda, a POW has no right to an attorney unless he is being tried for violations of the laws of war. The rules of war have never required a standard of "proof beyond a reasonable doubt" for the detention of a suspected member of the enemy. Nor have they ever required a judicial hearing after capture.
The Fifth Amendment's right to remain silent (which we think of today as "Miranda" rights) applies only in the criminal justice system. It declares that no person "shall be compelled in any criminal case to be a witness against himself." Same goes for the Sixth Amendment's right to counsel: "[I]n all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence." We impose less burdensome standards in war because the costs of a future enemy attack are far greater than simply allowing a crime that has already been committed to go unsolved. But this flexibility comes at a price. Intelligence obtained in military detention usually can't be used in any kind of criminal prosecution, since it would have been obtained without Miranda rights. We will obtain information that may prevent a future al Qaeda attack, but that information cannot be used to convict the detainee of a crime.
Suppose civil libertarians prevailed in court and enemy combatants each received a trial to test their detention. To prove that a detainee is a member of al Qaeda, the soldiers and officers who captured and processed the enemy combatant would have to be recalled from the field to appear in court, and subjected to direct and cross-examination. Detainees would want access to any information about them in the government's posession. They could cross-examine al Qaeda leaders in U.S. custody who identified them to test the credibility of the government intelligence. These are all standard rights in a criminal proceeding. Not only would these hearings consume a huge amount of resources and time, they would provide enemy combatants with a treasure trove of U.S. intelligence secrets. Al Qaeda could discover what communications were being intercepted, which parts of its network were compromised, and which plans had been discovered. An open proceeding makes sense when we want to place the burden on the prosecution to prove that a defendant is guilty of a crime beyond a reasonable doubt. It makes little sense when the objective is to preserve our intelligence advantages against an elusive and shadowy enemy.
The Bush administration na
turally wanted the courts to provide as much deference as possible to the facts supplied by the intelligence agencies and the military. "Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention," the justices have observed.46 To avoid recalling active-duty American soldiers, commanding officers, and al Qaeda prisoners for trials, we argued that the government had to meet the "some evidence" standard. That is, so long as sufficient evidence existed in the record put forward by the government, a court should uphold the detention. Courts have used this same standard in far less sensitive situations, such as extradition or immigration deportation hearings, where much less is at stake.47
In their eagerness to attack the Bush administration, critics ignored the administration's efforts to protect combatant civil liberties. For instance, it never challenged the courts' jurisdiction to review writs of habeas corpus or any other claims involving American citizens; it created a system to annually review the evidence to hold detainees; and it built a fair, due process-rich military commission system to handle war crime trials.
Critics have exaggerated their arguments in the press, claiming that President Bush wants to throw anyone into jail at any time just on his say-so. Not so. The government must prove that the detainee is an enemy combatant by showing affiliation with al Qaeda and hostile activity against the United States. A government official must submit a signed affidavit describing the facts. Any misrepresentations would be punishable, and they would undermine the government's position in future cases. In the Padilla case, the Mobbs Declaration, in addition to a classified memo by Vice Admiral Lowell Jacoby, head of the Defense Intelligence Agency, explained the national security concerns raised by allowing counsel to interfere with efforts to obtain intelligence from enemy combatants. In future cases, the government must provide the court with evidence detailing a detainee's links to al Qaeda and his hostile actions against the United States.