by John Yoo
Civil liberties absolutists say sworn statements by our national security and defense officials aren't enough. Instead, they are eager to use the detainee habeas corpus proceedings to conduct fishing expeditions into the government's intelligence and military operations--they want to grill captured al Qaeda leaders or American agents in the field on their knowledge. Padilla, for example, would demand that the CIA or the NSA explain just how they learned his travel schedule, whether the information was produced by informants or intercepted communications, and how and by whom it was done. All of this, of course, helps defense lawyers test the credibility or trustworthiness of witnesses in criminal cases. At the same time, producing such information in open court or in any way in which it might be transmitted to the enemy would compromise military secrecy and make the job of defeating al Qaeda far more difficult. This tactic is so standard--either give us this information and lose your intelligence advantage, or release our client--it is known in the legal trade as graymail. Prosecuted spies, such as an Aldrich Ames or a Robert Hanssen, regulary make such demands, and often win plea bargains as a result. It was this very bind that lawyers for John Walker Lindh hoped to create for the government when they demanded access to captured al Qaeda leaders.48
Our laws do not allow the government to detain Americans on fabricated evidence, but they also should not allow detainees to use our own legal system as a weapon against our war effort. Today, the good faith of our government's efforts against al Qaeda is not, or should not be, at issue. No one is using the war on terror as a facade to pursue innocent Americans. We need the right balance between protecting military secrets and ensuring that no innocent people are wrongly detained as enemy combatants.
The right policy would look something like this: Courts can review the detention of enemy combatants found within the United States and develop a definition of their status. The information disclosed in open court would be limited and closed hearings would protect classified information. An American detainee would receive a lawyer after interrogation by military and intelligence officers. Any information they obtain would be off-limits for any future criminal prosecution. Defense attorneys would have to hold security clearances. For now, both the Supreme Court and Congress seem content to leave the development of such a system up to the executive branch, the military, and the lower courts. They very well might strike the right balance between checks and balances and effectiveness in war, but if they cannot, Congress may have to enact a statute. So far Congress seems satisfied with staying silent and letting the President take the lead and bear the responsibility.
Congressional silence is hardly a warrant for full-blown judicial intervention. If Congress will not act to contain the imperial President, they say, the courts should step in to police our military and our intelligence agencies.49 Despite claims to the contrary, no one has questioned the role that the judiciary plays. The administration has not claimed the military could hold Lindh, Hamdi, or Padilla without any recourse to the courts, even though such a claim might have been an option.50 The question is how much information must be produced in court, and how much can be discussed in public.
Courts once regarded themselves as having no business reviewing the military detention of enemy aliens outside the United States at all. In Johnson v. Eisentrager (1950), the Supreme Court denied a habeas petition brought by German World War II prisoners, captured in China, who challenged their trial and conviction by military commission.51 The Court declared that only American citizens (anywhere in the world) and aliens who enter American territory could enjoy "the privilege of litigation" in American courts because "their presence in the country implied protection."52 The Eisentrager Court deferred to the decisions of the political branches because "trials would hamper the war effort and bring aid and comfort to the enemy."53 Judicial proceedings would engender a "conflict between judicial and military opinion," interfere with military operations by recalling personnel to testify, and "diminish the prestige of" a field commander called "to account in his own civil courts" and "divert his efforts and attention from the military offensive abroad to the legal defensive at home."54 While Eisentrager was overruled in 2004 by Rasul, which asserted jurisdiction over enemy detentions, Congress essentially restored Eisentrager last year in the Detainee Act of 2005.
The constitutional rights of Americans and aliens within the United States certainly require that we develop a process to ensure against mistaken or improper detentions. But the same does not apply to aliens fighting us abroad. In 1990, the Supreme Court found that aliens could not challenge alleged violations of the Bill of Rights occurring outside the country,55 precisely because it would make fighting wars impossible. Every dropped bomb would be a taking of property for which compensation would be owed, every detention an unconstitutional arrest, every killing a deprivation of due process. Applying the Fourth Amendment to aliens abroad, Chief Justice Rehnquist wrote for the Court, "could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest."
This is not to say that the military can hold alien enemy combatants arbitrarily. Our armed forces have no desire to hold civilians, nor to hold enemy combatants any longer than necessary. Detention operations place a drain on soldiers and resources that could be better spent on taking the fight to al Qaeda. As Rumsfeld more colorfully put it, the military has no desire to be the world's jailer.
The military has released scores of captured enemy combatants to the custody of their governments. Detainees are screened and reviewed at multiple levels of military command. Only those with the highest threat profile or the most intelligence value are sent to Guantanamo Bay. In 2004, in response to the Supreme Court's decisions, the Defense Department created Combatant Status Review Tribunals (CSRTs). Headed by officers, the tribunals use all available information to review annually whether a detainee still qualifies as an enemy combatant. A detainee has a right to appear before the tribunals with the assistance of a military representative.56 Those who still pose a threat of further terrorist activity or who might have valuable information will continue to be held. Determining whether a detainee is lying or is in fact a civilian takes time and should be done patiently. These concerns should not be understated. Several suspected al Qaeda and Taliban detainees who were released in 2003 and 2004 have since been recaptured in Afghanistan conducting attacks against coalition forces or engaging in efforts to destabilize the Karzai government.57
If the military were required to act like a police force, it would inevitably be at the expense of actual war-fighting, subordinating the fight with the enemy to worries about the litigation to follow. As Eisentrager observed, "[I]t would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."58 We cannot expect our soldiers in the field to worry about warrants, lawyers, Miranda, forensic evidence, and chains of custody if we want to win the war on terrorism.
Press reports might give the impression that the Supreme Court rejected all of this in 2004. Actually, the Court confirmed the administration's basic legal approach to the war on terrorism, while making clear, however, that it would no longer regard military detentions as outside its purview.
Concern for the new challenges of 9/11 might also have led the Court to adopt a "some evidence" standard narrowing judicial inquiry to the facts known to the government and subject to production in court.59 But the Court did not choose this route. Rather, it issued a vague order to the lower courts to develop a fair process to review detentions for every detainee under the control of the United States anywhere in the world. It was an unprecedented intrusion into the traditional powers of the President and Congress over war and one that required it to overrule Eisentrager. The Court was asserting that judges could make factual and legal judgments, in the midst of war, f
ar beyond what had once been considered their normal areas of expertise.
In 2004, the Supreme Court decided a trilogy of enemy combatant cases. Most Court observers thought that Padilla would be the centerpiece. As an American captured outside a traditional battlefield, he certainly seemed to be the toughest case. Instead, the Court dismissed it because the plaintiff had brought it in the wrong place.60 Eventually, a court of appeals unanimously found in late 2005 that "[u]nder the facts as presented here, Padilla unquestionably qualifies as an 'enemy combatant'" as that term was defined in the Supreme Court's cases,61 even though he had been detained in the United States, not in Afghanistan. While Padilla's case was on appeal to the Supreme Court, the Justice Department concluded it had enough evidence to prosecute Padilla for crimes. On November 22, 2005, a Miami grand jury indicted Padilla on charges of conspiracy to commit murder and to provide material support to al Qaeda as part of a North American terrorist support cell already under prosecution.62 The Supreme Court dismissed the appeal as moot since he was now in criminal court.
Instead, Hamdi v. Rumsfeld became the central opinion on the war on terrorism. Hamdi rejected arguments that terrorism had to be understood solely as criminal activity and that war could only occur between nations. A four-justice plurality, composed of Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Anthony Kennedy, and Stephen Breyer, agreed that the September 11 attacks had initiated a state of war, that the Afghanistan conflict was part of that war, and that enemy combatants could be detained without criminal charge.63 The court plurality found that the September 18 AUMF provided sufficient authority to detain Hamdi and did not question its constitutionality. "There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing" the AUMF.64
The four justices agreed with the argument we had developed years earlier that detention was part of the executive's use of force.65 The justices also reaffirmed that individuals, including U.S. citizens, who associate with enemy forces, are enemy combatants who may be detained, and observed that the purpose of detention in the military context is not to punish, but merely to prevent combatants from returning to the fight.66 Its indefiniteness did not make the detention unconstitutional.67 Rather, "the United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who 'engaged in an armed conflict against the United States.'"68
Contrary to the much-publicized views of pundits and professors, the Hamdi Court upheld the core of the administration's approach to terrorism. Chicago's O'Hare Airport, New York Harbor, and the Mexican and Canadian borders will be the front lines of this war in the future. If the Court had prevented the government from detaining an American al Qaeda, it would have seriously handicapped this nation's ability to defend itself in the next chapter of this war.
Up to this point, the Court had remained well within the boundaries of tradition by which courts have usually deferred to the President and Congress in matters of war.69 Despite the arguments of a coalition of law professors, members of the bar, and commentators, it would have been remarkable for the Court to have disregarded this framework developed over the nation's long history.70 But victory for the administration was far from complete. While rejecting the positions of Hamdi and the government, the Court fashioned a compromise--that an enemy combatant must receive notice and "a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker."71 The Court borrowed an amorphous standard from a case about the termination of welfare benefits, which balanced the private interest affected by government action, the government's interests, and the costs of providing greater process, to judge whether procedures provided to an enemy combatant comport with fair process. 72 73
That the Hamdi Court had to resort to a case about procedural due process in a welfare case shows the extent to which it was improvising. On the one hand, Justice O'Connor wrote, an individual citizen's interest "to be free from involuntary confinement by his own government without due process of law" is fundamental.74 On the other hand, the government has a "weighty and sensitive" interest in preventing enemy combatants from returning to fight against the United States.75 Requiring the government to reveal intelligence data in court could be fatal. So, then, which is it? The Court gives no clue how courts should balance these interests. Should a court gauge the government's interest in protecting the national security by figuring out the number of lives potentially saved times the probability of an attack, using the average value of a life as measured by the Environmental Protection Agency? And how to measure the individual liberty interest against unwilling detention--in average amount of dollars per hour an average citizen would pay to avoid detention? If effort to monetize these values seem silly, it is because there is no systematic, rational way to strike a balance between these competing values. The Supreme Court punted to the lower courts to make the tough decisions about specific procedures, such as how much evidence the government should provide to a judge.
After the Court's decision Hamdi renounced his citizenship and was released to the custody of Saudi Arabia.76 But Hamdi's impact was still wide--largely because of the Court's decision in Rasul v. Bush. Safiq Rasul and Asif Iqbal were two British citizens captured in Afghanistan and sent to Guantanamo Bay. Through relatives, they filed suits in federal court in Washington, D.C., seeking their release on the ground that they were not enemy combatants and had never fought against the United States. The courts joined their case with those of two Australians and twelve Kuwaitis held at Gitmo who demanded their release because they were not charged with a crime. Both the federal trial courts and appeals court, following governing Supreme Court case law in place since World War II, said they had no jurisdiction to hear cases brought by aliens held abroad.
But the Supreme Court in Rasul ruled that Guantanamo Bay lay within the jurisdiction of the federal courts, and that district judges can review habeas corpus challenges regardless of a detainee's citizenship or location. This is something previous Supreme Courts had always avoided, for good reason.77 Without saying so explicitly, Rasul seemed to overrule, and certainly ignored, Eisentrager's concerns about judicial interference with military operations. It was a wrongheaded decision that posed the threat of judicial micromanagement of military operations as never before.
Worse, Rasul provided no guidance on how the courts were to shoulder this vast new responsibility. How soon should hearings be held? Where? Who could participate? How would classified intelligence remain protected?78 What kinds of evidence or witnesses would the government have to produce? How long could it interrogate before giving the detainee access to an attorney? Rasul studiously avoided any discussion of what substantive rights enemy detainees might have, no doubt on purpose. But while the Court's ambiguous Hamdi's balancing test might have left the other branches some flexibility on these questions, it also made a struggle between the federal judiciary and the other branches inevitable.
About the only thing it was safe to assume was that if Hamdi defined due process for citizens on U.S. soil, its standards ought to suffice for aliens held outside the country too. To avoid further judicial intervention, the Pentagon could adapt its existing review process for Guantanamo prisoners to meet the standards of Hamdi (as Justice O'Connor seemed to invite).79 Military commissions could be altered to meet the Court's procedural requirements. The Court's ambiguous balancing test for fairness gives the executive branch little choice but to follow all of Hamdi's suggestions in all cases, with further litigation inevitable and judges now charged with interpreting and applying the new vague law in unpredictable ways.
Civil libertarians make a reasonable-sounding argument defending the expansion of the judicial role. We trust courts to make decisions on many of our society's important issues, including abortion, affirmative action, the deat
h penalty, police power, and the place of religion in the public square. It fulfills our Constitution's original design to allow the courts to check and balance the actions of the President and Congress. If the federal courts can potentially review the arrest and sentences of every criminal defendant in the country, should they not also provide a final check on wartime detentions by the President and Congress?
While this is a straightforward and appealing argument, it has no basis in our two-hundred-year history. Until 2004, our courts had never reviewed a single case of the military detention of an enemy alien held abroad during wartime.80 Civil libertarian arguments appeal to our traditional American distrust of government power and of standing armies, attitudes recorded even by de Tocqueville. Courts play a significant role to ensure that the people's agents--the government--obey the limits on their delegated powers as expressed in the Constitution. In order to restrict the government and protect individual rights, judges must have as much independence and neutrality from the elected branches of government as possible.
But in the area of national security, the judiciary's strengths become weaknesses. In wartime, we want to expand, not limit, the powers of government against the enemy. But enemy aliens are not part of the American political community and do not have the same constitutional rights as its actual members. The avant-garde effort today is to enact a conception of human rights into law worldwide. While this is a noble goal, we have no workable or legitimate mechanism of world government to legitimize these efforts other than the old-fashioned method of treaties that are domestically ratified in whole or in part--though international lawyer-activists often proclaim otherwise.