by Peter Irons
Justice O’Connor’s rosy prediction that affirmative action programs will no longer be necessary in 2028 may prove accurate. But the short-term results of the Gratz and Grutter rulings have been discouraging for racial minorities. In November 2005, the American Bar Association reported that only 15 of the nation’s some 150 predominantly white law schools had black enrollments of 10 percent or more, a drop from 27 schools in 2002. Blacks also made up only 6 percent of medical students in 2005, a significant decline over the previous three years. Even with the Court’s approval in Grutter of race as a plus factor in admissions, graduate and professional schools have relied more on undergraduate grades and standardized test scores in choosing students, placing minority applicants at a disadvantage. Many experts feel it may take several generations, not just twenty-five years, before the past effects of discrimination and poor education can be overcome. Until that time—if it comes—both the Supreme Court and American society will continue to debate the divisive issue of affirmative action.
The Supreme Court is rarely confronted with cases in which the justices have little or no precedent to guide their decisions. Even in cases that raise new issues of constitutional interpretation, such as school prayer, abortion, or affirmative action, earlier cases have provided some basis—however much their facts may have differed—for construing such provisions as the Establishment of Religion clause, or the Due Process and Equal Protection clauses. However, the shocking events of September 11, 2001, when Muslim extremists crashed hijacked airplanes into the World Trade Center and the Pentagon, killing almost three thousand people, provoked an unprecedented “war on terrorism” that prompted President Bush to send thousands of American troops into Afghanistan and later, hundreds of thousands into Iraq. Whether these invasions of other countries—particularly in Iraq—were legal under the Constitution and international law remains a hotly debated issue. But the Court has not yet faced a challenge to the president’s authority to utilize armed force to bring about “regime change” in countries accused of harboring terrorists or concealing weapons of mass destruction, without a congressional declaration of war. Ever since the Vietnam War federal judges have invoked the “political question” doctrine, which assumes that Congress and the president should resolve conflicts over which branch controls the war-making power, to avoid ruling on issues of foreign policy.
However, the “war on terrorism” did force the Court in 2004 to decide an almost unprecedented legal question: Can the government detain and imprison American citizens, whom the president claims are “enemy combatants,” without bringing criminal charges against them, for an indefinite period and without access to federal courts to challenge their detention? The Constitution provides, in the Fifth Amendment, that “no person shall . . . be deprived of life, liberty, or property, without due process of law.” It also provides, in Article I, that “the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it,” a power granted only to Congress. Read together, these clauses allow any person whose liberty is deprived by imprisonment to apply for a writ of habeas corpus, and to appear before a judge to challenge the government’s power to detain them. However much the public safety is endangered by threats of terrorism, at home and abroad, even suspected terrorists cannot be held indefinitely and incommunicado without violating the Due Process and Habeas Corpus clauses. That was the argument, vigorously contested by the Bush administration, made by lawyers for two American citizens who were seized in 2002 as “enemy combatants” and held without charges in federal military prisons.
Yaser Esam Hamdi and Jose Padilla made similar claims to habeas corpus protection to challenge their detention, but in very different circumstances. Hamdi was born in 1980 in Louisiana to parents from Saudi Arabia; his father worked in the oil fields. His American birth gave Hamdi citizenship, but his family returned to Saudi Arabia when he was a child, and he most likely never thought about his citizenship until he was seized in Afghanistan as a suspected Taliban fighter and shipped to the American detention center in Guantánamo Bay, Cuba. Once his American birth and citizenship came to light, Hamdi was transferred to a Navy prison in Virginia. Padilla, in contrast, was born and raised in Chicago, before converting to Islam and supposedly joining the al Qaeda terrorist network. Federal agents claimed that he received training in Pakistan and Afghanistan before returning to Chicago in 2002, when Padilla was grabbed as he got off a plane from Switzerland. Attorney General John Ashcroft promptly called a news conference to announce that Padilla had plans to set off a “dirty bomb” that would scatter radioactive debris across an American city, although he arrived in Chicago with nothing more than a suitcase of clothing. Dubbed by the press the “dirty bomber,” Padilla wound up in a Navy brig in Charleston, South Carolina.
After months of detention, Yaser Hamdi became the first “enemy combatant” to drag the Bush administration into federal court, through a habeas corpus petition filed on behalf of his father against Defense Secretary Donald Rumsfeld. District Judge Robert Doumar, named to the bench by President Reagan, appointed a federal defender, Frank Dunham, Jr., to represent Hamdi, although government lawyers refused to allow Dunham to meet with his client. At the first hearing on the habeas petition, Judge Doumar asked the Justice Department’s lawyer, Gregory Garre, to explain the government’s decision to detain Hamdi without charges or access to counsel. Garre handed Doumar a two-page affidavit by Michael Mobbs, identified as a “special advisor to the undersecretary of defense.” Mobbs had never met Hamdi, but his affidavit claimed that a “review” of government records convinced him that Hamdi had been “seized while fighting with the Taliban in Afghanistan.” According to Mobbs, Hamdi had been captured by troops of the Northern Alliance, an Americanbacked Afghan force, and had turned over a Russian-made Kalashnikov rifle. Doumar noted that every statement in the Mobbs affidavit was hearsay, based on unidentified sources and with no supporting documentation. “I’m challenging everything in the Mobbs declaration,” Doumar told Garre. “Indeed, a close inspection of the declaration reveals that [it] never claims that Hamdi was fighting for the Taliban.” Garre replied that revealing the records Mobbs had relied on might endanger government agents or compromise intelligence sources. Nonetheless, Doumar ordered Garre to turn over the records for his inspection. With the courtroom temperature rising, Garre declined to comply. “The present detention is lawful,” he doggedly insisted. Doumar had one final question. “So the Constitution doesn’t apply to Mr. Hamdi?” Garre had no answer.
After that judicial standoff, Frank Dunham—still refused access to his client—filed an appeal with the Fourth Circuit, reputedly the most conservative federal appellate court in the country. A three-judge panel answered Doumar’s question with a firm “no.” The claims in the Mobbs affidavit, the judges said, “if accurate, are sufficient to confirm that Hamdi’s detention conforms with a legitimate exercise of the war powers given to the executive.” But this ruling begged two questions. The judges simply took the government’s word that Hamdi was “affiliated” with the Taliban, and assumed that President Bush’s “war powers” extended to the indefinite detention of American citizens, without charges or access to counsel.
Hamdi’s appeal from this denial of habeas corpus reached the Supreme Court in 2003, along with a similar appeal from Jose Padilla. A third “enemy combatant” case before the Court involved habeas petitions filed on behalf of fourteen of the six hundred inmates of the military prison at Guantánamo Bay, none of them American citizens. The Padilla and Guantánamo cases were complicated by jurisdictional questions. Padilla’s lawyers—who also had never met their client—had sued Defense Secretary Rumsfeld in the District of Columbia federal court. Government lawyers argued that they should have filed the petition in South Carolina against the warden of the Charleston Navy brig, the person holding Padilla in custody. In the Guantánamo cases, government lawyers made the hair-splitting claim that federal judges c
ould not rule on the petitions because the naval base was actually on Cuban territory, outside the reach of federal courts. Such jurisdictional questions torment first-year law students in civil procedure classes, and the Supreme Court justices seemed more like professors when they heard oral arguments in the Padilla and Guantánamo cases on April 20, 2004, grilling the lawyers on both sides about provisions of the federal habeas corpus statute and Cuban sovereignty over the American naval base.
One week later, on April 28, the arguments in Hamdi v. Rumsfeld turned from jurisdiction to the president’s authority to detain suspected “enemy combatants” and to hold them for trials before military commissions rather than before juries in federal courts. The differences between the two kinds of proceedings were substantial. Military commissions, which President Bush had proposed for “enemy combatants” but had not yet established with formal regulations, would not allow defendants to see all the evidence against them or to challenge hearsay statements by government witnesses. In addition, verdicts of the military tribunals need not be unanimous. Under Supreme Court precedent, criminal defendants in federal courts had all these due process rights.
It took the justices two months to weigh these conflicting arguments and write opinions in the three “enemy combatant” cases. When the Court issued its rulings on June 28, 2004, reporters quickly skimmed through more than one hundred pages of ten separate opinions. They found their lead in Justice O’Connor’s opinion in the Hamdi case, in which she declared that “a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens.” The bottom line of the Court’s ruling was that the Constitution afforded Hamdi a right to challenge his detention “before a neutral decision-maker.” But these words left undecided the crucial questions of who that decision-maker might be, and what kind of proceedings Hamdi would be entitled to in pursuing that challenge.
In fact, the justices were sharply divided over the first issue addressed in O’Connor’s opinion, the validity of Hamdi’s detention in the first place. On this question, only Chief Justice Rehnquist and Justices Kennedy and Breyer joined this part of her opinion, holding that the congressional Authorization for Use of Military Force, adopted just two weeks after the 9/11 attacks in 2001, had granted President Bush the power to detain suspected “enemy combatants” seized in Afghanistan, even American citizens. “Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force,’ Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here,” O’Connor wrote.
But her conclusion was not at all clear to the four justices who dissented on this issue. Not surprisingly, two of the Court’s most liberal members, Justices Souter and Ginsburg, disagreed with O’Connor. The Use of Force resolution “never so much as uses the word detention,” Souter wrote for himself and Ginsburg, “and there is no reason to think Congress might have perceived any need to augment executive power to deal with dangerous citizens within the United States.” More surprisingly, Justice Scalia, one of the most conservative justices, issued a pointed dissent that was joined by the Court’s most stalwart liberal, Justice Stevens. It made no difference, Scalia argued, whether the Use of Force resolution could be read broadly enough to infer congressional approval of Hamdi’s detention. No American citizens, Scalia asserted, can be detained any longer than it would take to file charges against them, no matter what crimes they are accused of committing. Hamdi, of course, had not been charged with any criminal offense, compounding the deprivation of his due process rights. Unless he was charged with treason or some other crime, Scalia wrote, Hamdi should be promptly released from custody.
Despite their lack of agreement on the president’s authority to detain Hamdi, eight justices rejected the Bush administration’s claim that alleged “enemy combatants” had no access to judicial review of their detention; Justice Clarence Thomas stood alone in dissenting from this holding. His agreement that Congress had authorized the president to detain Hamdi had provided O’Connor the necessary majority on this issue, but Thomas disagreed with his fellow conservative, Justice Scalia, that government lawyers should either bring criminal charges against Hamdi or release him from custody. Bush’s determination that Hamdi was an enemy combatant, Thomas wrote, “should not be subjected to judicial second-guessing,” despite the lack of any hearing at which Hamdi could dispute this allegation.
None of his colleagues shared Thomas’s complete deference to executive power during wartime. Writing for a plurality of four, O’Connor held that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker.” In other words, Judge Doumar had correctly ruled that the Mobbs affidavit, by itself, lacked enough supporting evidence to decide whether Hamdi’s detention was lawful. The Court’s decision that Hamdi was entitled to judicial review of his detention, however, was never tested in any further proceeding. In September 2004, the government released Hamdi from the naval brig, most likely to avoid a hearing before Judge Doumar and questions about the credibility of the Mobbs affidavit. To gain his freedom Hamdi had agreed to return to Saudi Arabia and renounce his American citizenship. “He has always thought of himself as a Saudi citizen,” Frank Dunham said, “and he wasn’t willing to spend another day in jail over it.” After his release Hamdi expressed no bitterness at his treatment and simply said, “I am an innocent person.” Whether he was innocent of any terrorist acts, of course, was a question the Bush administration had refused to permit a court to decide.
The Court’s ruling in the Hamdi case would seemingly apply to Jose Padilla as well. Both were American citizens, held without charges. Surprisingly, however, the Court gave the government a short-term victory in agreeing that Padilla had filed his habeas petition in the wrong court and against the wrong defendant. His lawyers promptly filed another petition in South Carolina, against the Navy brig’s warden. Ruling in February 2005, federal judge Henry Floyd, who had been named to the bench by President Bush in 2003, dealt the government a judicial rebuke. Following the Hamdi ruling, Floyd held that “the President has no power, neither express nor implied, neither constitutional nor statutory, to hold Petitioner as an enemy combatant.” He ordered that Padilla be released within forty-five days, unless federal prosecutors filed criminal charges against him. Padilla remained in the brig, however, still uncharged, while government lawyers filed an appeal of Floyd’s ruling with the Fourth Circuit, whose ruling in the Hamdi case the Supreme Court had reversed. But the conservative appellate judges stuck to their guns, holding in September 2005 that President Bush had the power “to detain identified and committed enemies such as Padilla, who associated with al Qaeda [and] who took up arms against this Nation in its war against these enemies, and who entered the United States for the avowed purpose of further prosecuting that war by attacking American citizens.” Once again, the Fourth Circuit judges simply assumed the truth of these claims, barring Padilla from any hearing to challenge them.
The Supreme Court’s ruling in the Hamdi case left open the issue of whether the suspected al Qaeda terrorists and Taliban fighters held at Guantánamo Bay, none of them American citizens, had the same right to challenge their detentions in federal courts. In an even greater rebuff to the Bush administration, six justices agreed that they did, in the case brought by two Australians and twelve Kuwaitis, Rasul v. Bush. Justice Stevens, who had joined Scalia’s dissent in Hamdi, wrote for the majority, rejecting the government’s claim that the Guantánamo naval base was not American territory, over which federal judges lacked jurisdiction. Stevens said the inmates “are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been
afforded access to any tribunal, much less charged with and convicted of wrong-doing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.” Stevens left undecided the question of what kind of tribunal, military or civilian, might decide the inmates’ challenges to their detention, but he made clear that such proceedings must, at a minimum, provide counsel, notice of charges and evidence, and an opportunity to rebut that evidence. In a concurring opinion Justice Kennedy stressed the need for prompt resolution of these cases. “Perhaps, where detainees are taken from a zone of hostilities,” he wrote, “detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.”
Justice Scalia, whose Hamdi opinion had blasted the detention without trial of American citizens, wrote a blistering dissent in Rasul, joined by Chief Justice Rehnquist and Justice Thomas. Scalia displayed no similar concern for the rights of noncitizens; he would have handed President Bush the “blank check” that Justice O’Connor had refused to sign for the Court. “The commander in chief and his subordinates,” Scalia wrote, “had every reason to expect that the internment of combatants at Guantánamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs.” In his characteristic hyperbole, Scalia accused the majority of “judicial adventurism of the worst sort.” In truth, what the Court’s majorities had displayed in both the Hamdi and Rasul cases was not “judicial adventurism” but judicial adherence to the Constitution’s command that “no person” can be deprived of liberty without due process of law, citizen and noncitizen alike.