Korematsu harmed the Court. It suggested that the Court was unwilling or unable to make an unpopular decision that would protect an unpopular minority. This suggests a failure to carry out what Hamilton saw as a primary function of the Court’s exercise of judicial review. In general, the Court’s ruling in this case has gone down as a judicial failure. Korematsu shows the practical need for the Court to assure constitutional accountability, even of the president and even in time of war or national emergency.
Chapter Fifteen
Presidential Power:
Guantánamo and Accountability
THE SEPTEMBER 2001 terrorist attacks on the United States led to a war in Afghanistan, which was accused of harboring the terrorists who planned the attacks. It also led to the capture of suspected terrorists and terrorist sympathizers, the incarceration of several hundred suspected Al Qaeda or Taliban members and supporters at Guantánamo Bay, Cuba, and court cases growing out of that confinement. Between 2003 and 2007 the Court decided four of those cases. They involved detained persons who sought writs of habeas corpus to secure their release and raised questions involving the liberty of terrorist suspects and national security needs. They required the Court to consider its relationships with Congress and the president when security is at risk. And they presented the Court with a challenge similar to that presented in Korematsu. Is there a workable legal approach that can help the Court ensure constitutional fidelity when national security is endangered? I believe the Court adopted a more workable approach than in Korematsu, but history will ultimately decide whether the Court met that challenge appropriately. Here I can simply describe what the Court did, while emphasizing the Court’s role in helping to make the Constitution work.
The basic facts are well-known. On September 11, 2001, Al Qaeda terrorists hijacked four commercial airliners and used them to destroy the World Trade Center and demolish a portion of the Pentagon. (Passengers brought down in Pennsylvania a fourth plane believed to be on its way to Capitol Hill.) The terrorist attacks killed approximately three thousand people, injured many thousands of others, and destroyed billions of dollars’ worth of property. At the request of President Bush, Congress immediately authorized him to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons.” The president sent American troops to Afghanistan to fight against that country’s Taliban government as well as the Al Qaeda forces that the government had harbored.1
During the next several years American and allied forces captured and screened more than 10,000 suspected Al Qaeda or Taliban members. They sent about 750 individuals to the American naval base at Guantánamo Bay, Cuba. Most of those confined were citizens of Afghanistan, Saudi Arabia, or Yemen, and the rest came from among thirty different countries. In the early years most detainees were fighters from countries other than Afghanistan, and about one-third were Al Qaeda leaders or operatives. Many of those originally confined were released. In later years the population consisted primarily of Al Qaeda and Taliban leaders and operatives.2
As of late 2004 the government had freed or released to the care of other governments about 200 individuals, and about 550 remained in custody. As of late 2008 the number in custody had fallen to about 260, including 27 Al Qaeda leaders, 99 lower-level Al Qaeda operatives, 9 Taliban leaders, 14 lower-level Taliban operatives, 93 foreign fighters, and several others.3
Defense Department reports state that the inmates were initially housed in Camp X-Ray, a “spartan” facility with “simple” plywood interrogation rooms, built in the 1990s to house Cuban and Haitian refugees. Because of Camp X-Ray’s “limited capacity and primitive conditions,” military authorities soon built another facility, Camp Delta, which housed about six hundred detainees. Eventually, the authorities built a third “maximum security” facility, Camp 5, with room for about a hundred of “the most uncooperative individuals.” Most detainees remained in custody for two to four years. About 10 percent were confined more than five years.4
A Defense Department document also explains why the department chose Guantánamo as a place for interrogation and confinement. Guantánamo was near the United States and under U.S. control. It also was secure and far from the Afghanistan battlefields. And most important, it “was considered a place where these benefits could be realized without the detainees having the opportunity to contest their detention in the U.S. courts.”5
Guantánamo’s inmates, aided by attorneys working free of charge, soon began to challenge this last assumption. The Defense Department did not permit any direct contact with the inmates, nor did it provide them with legal counsel, but it did release their identities. Civil rights groups and others then asked the detainees’ friends or relatives to bring a lawsuit, under a law that permitted a suit on behalf of an individual held in custody, that is, as a “next friend.” With legal representation provided by the interested groups, “next friends” brought petitions for writs of habeas corpus in the federal courts, claiming that the Constitution or laws of the United States entitled the inmate to release. Did the law permit such an inmate to file such a petition? If so, did it entitle the inmate to release? Four cases presenting these or similar questions made their way to the Supreme Court. (I joined the majority or plurality in all of these cases.)
RASUL
SHAFIQ RASUL, ELEVEN other Kuwaitis, and two Australians, all detained at Guantánamo, were the petitioners in the first case, Rasul v. Bush, which the Court decided in June 2004. Although the Defense Department said they were enemy combatants captured during fighting in Afghanistan, they argued that they were humanitarian aid workers who had been taken prisoner by mistake. They asked the federal district court to issue writs of habeas corpus requiring the Defense Department to release them or at least give them a better opportunity to prove they were not combatants. The question for the Court was whether a civilian court could even consider a Guantánamo prisoner’s claim that the government was confining him unlawfully.6
The writ of habeas corpus provides a bedrock protection for an individual’s freedom. The writ originated in England more than four hundred years ago and allows a court to review an individual’s claim that the government, then the king, is confining that individual without the legal authority to do so. The Constitution underlines the importance of the writ by stating that the “privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The first Congress that met after the adoption of the Constitution enacted laws authorizing courts to issue writs of habeas corpus. The statute books have contained laws of this kind ever since.7
The Rasul case asked whether a civilian court has the power to issue a writ of habeas corpus on behalf of a Guantánamo prisoner. If not, neither the Supreme Court nor any lower civilian court could even consider the prisoners’ claims of unlawful detention. The answer to the question turned on what seem highly technical matters. The congressional habeas corpus statute said that writs of habeas corpus “may be granted” by justices of the Supreme Court, by individual district courts, and by individual circuit judges, “within their respective jurisdictions.”8
These last four words make clear that a particular judge can issue a writ only within a particular geographic area. The word “jurisdiction” suggests that the area in question is one where the judge’s court ordinarily exercises binding legal authority, say Washington, D.C., in the case of the federal district judge in question. How do these words apply when, as in the Rasul situation, the imprisoned person is held at Guantánamo Bay, but the jailer, namely, the government, operates, and is subject to being sued, within Washington, D.C.? Does the statute authorize a judge in Washington, D.C., to issue a writ on behalf of such a person, a person held by the military outside the United States?
Because the wording of the habeas corpus statute does not answer this question, the Court
had to look elsewhere, and it found conflicting cases. On the one hand, several earlier cases suggested that the place that mattered was the place where the detained person was held, that is, Guantánamo, not the place where the government might be found, that is, Washington, D.C. Just after World War II the Court held in Johnson v. Eisentrager that federal courts did not have jurisdiction to consider the habeas corpus petitions filed in the United States by several German citizens who had been captured and were being held abroad. American forces had captured the Germans in China, and a military tribunal in Nanking had convicted them of war crimes. They were imprisoned in Germany at a prison managed by Allied forces, including Americans. When the Court decided that a court within the United States could not consider their habeas petitions, it referred to all these circumstances. It pointed out that the prisoner was an enemy alien who had never been to the United States. He had been captured abroad by military forces and convicted abroad of crimes committed outside the United States. And he was imprisoned outside the United States. In Rasul the government relied on this case. But after Eisentrager the Court decided another case in which it held that a Kentucky federal court could consider a habeas petition filed by a prisoner confined in a prison in Alabama. The Guantánamo petitioners relied on this case, arguing further that in the earlier case, Eisentrager, the court had based its conclusion on the presence of several factors, two of which were absent here. First, the Guantánamo petitioners had not been convicted of war crimes. Second, they were not being held outside the United States. Guantánamo, they said, was part of the United States.9
The Supreme Court agreed with this last argument. It held in Rasul that the prisoners could file their habeas petitions because for all practical purposes Guantánamo was part of the United States. The United States had leased Guantánamo from Cuba in 1903. But, as Justice Anthony Kennedy observed in a concurrence, the “lease is no ordinary lease.” Although the lease says that Cuba retains “ultimate sovereignty,” its term is “indefinite,” and the lease cannot be abrogated unless the United States stops using Guantánamo as a naval base or otherwise consents to the abrogation. As long as the United States is present, the base is totally subject to American, and only to American, law.10
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:
Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.
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.
HAMDI
ON 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
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