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:
While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here.23
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.
HAMDAN
AFTER THE COURT 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
In June 2006 the Supreme Court decided its third Guantánamo case, Hamdan, which concerned the president’s authority to use these special military commissions. The case arose when military authorities brought charges before a special military commission claiming that Salim Ahmed Hamdan, who had been Osama bin Laden’s personal driver and bodyguard, was a member of a conspiracy to attack civilians, engage in terrorism, and commit murder. The indictment charged that Hamdan had driven bin Laden to training camps, press conferences, lectures, and similar events, had arranged for the transportation of weapons, and had himself received weapons training.28
Hamdan filed a habeas petition in a federal district court. He argued that his confinement violated the law because he was confined pending trial before one of these commissions and the president lacked the legal authority to try him before such a commission. The district court agreed with Hamdan, but the court of appeals disagreed. The Supreme Court then consented to decide the question and held in Hamdan’s favor, holding that the relevant statutes did not authorize the military to use these special commissions.
The case before the Court involved various questions of statutory interpretation. But the last sentence of the Court’s opinion made an important general point. In “undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the rule of law that prevails in this jurisdiction.” And it reaffirmed “the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty.”29
Nonetheless, the basic issue in the case was statutory, not constitutional, and the Court cautiously interpreted the relevant statutes. The key statute said the executive could use military commissions but only “with respect to offenders or offenses that [1] by statute or [2] by the law of war may be tried by military commissions.” Because no “statute” gave military commissions authority to hear Hamdan’s case, the determinative legal question was whether his case was one that a military commission could try “by the law of war.”30
Recognizing that the statute’s language invited a historical investigation into what kinds of cases the “law of war” authorized commissions to try, the Court did just that. It concluded that the armed forces have used military commissions only where martial law has been declared, where civilian courts are not functioning, or where enemy battlefiel
d combatants have violated the laws of war, say by committing atrocities. None of these circumstances was present in Hamdan’s case. Hence the statute did not grant the president the power to try Hamdan before a military commission. Moreover, in the view of some justices, the government’s basic charge, that Hamdan had conspired to help bin Laden commit terrorist acts, did not claim a violation of the “law of war.”31
The Court pointed to another statute, which said that the military must (insofar as is “practicable”) create procedures for military commissions and for courts-martial that are uniform and similar to those in ordinary courts. Where, asked the Court, is the procedural uniformity that this statute demands? Why can the commissions allow hearsay and exclude the defendant from certain proceedings in ways forbidden to courts-martial? Why is uniformity not “practicable”? The Court found no good answers to these questions, and it consequently held that the commissions’ procedures violated the statute’s uniformity requirement. The Court added that the commissions’ unjustified use of nonuniform procedural rules could also violate an international treaty, the Fourth Geneva Convention, which required nations to try members of hostile armed forces in a “regularly constituted court” and to apply “all the judicial guarantees which are recognized as indispensable by civilized peoples.”32
Three members of the Court dissented, reading the history differently. They also argued that Congress had authorized the commissions in the September 11 statute, which authorized the president to respond to the terrorist attacks with military force. They denied that the Geneva Convention applied. And they argued that, in any event, the Court should not have decided the case at that time, but considered the matter only if the commission convicted Hamdan. The remaining member of the Court, the chief justice, did not participate in the case because he had participated in the case earlier as a member of the court of appeals before his Supreme Court appointment.
For present purposes, the salient fact about the Court’s decision is that it turned on the Court’s interpretation of congressional statutes. The Court held that Congress had not issued the president a blank procedural check. The congressional statute that specifically mentioned commissions authorized the president to establish them only in certain circumstances—not present in Hamdan’s case. Moreover, Congress had mandated certain procedural requirements, not satisfied when the military established Hamdan’s commission, despite the statute’s permission for special procedures when following regular procedures was not “practicable.”
As in President Truman’s steel seizure case, the Court insisted that the executive follow statutory requirements. It held that the executive had not done so, and hence its actions were unlawful. The Court, in examining the statute’s requirement for the use of uniform procedures where “practicable,” recognized the need for workable law. And it took account of the constitutional role of other branches of the government.
The majority pointed out that no emergency or other obstacle prevented the president from asking Congress to give him the authority he believed necessary. (Nor did the Court hold in advance whether or to what extent the Constitution might limit the use of any such later obtained authority.) As far as Hamdan is concerned, the Court simply limited the president’s authority to act as he had on his own, without legislative authority. Insofar as the Court rested its holding upon statutes, it did not limit the president’s ability, or that of the military, to act in time of hostilities.33
BOUMEDIENE
IN NOVEMBER 2006, five months after the Court decided Hamdan, President Bush sent to Congress a proposed bill that would ratify his exercise of broad detention authority. And Congress then enacted a new law (as the Constitution permits, and expects, Congress to do when it disagrees with the Court’s interpretation of a statute). The new law gave the president authority to establish the military commissions and also broadened the definition of “unlawful military combatant.” Furthermore, the law forbade the courts to determine the lawfulness of detention by measuring it against Geneva Convention standards. And it provided, in respect to habeas corpus, that “[n]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien” detained at Guantánamo.34
Thus, the new act made obsolete the Court’s statute-based decision in Rasul. It thereby raised the constitutional question of whether Congress, acting by statute, could deprive the Guantánamo prisoners of the right to file a petition of habeas corpus. The question was not straightforward, because Congress had previously given the Court of Appeals for the District of Columbia Circuit explicit authority to review decisions of the Defense Department’s Combatant Status Review Tribunals, including those about whether a detainee was an enemy combatant. The court of appeals could decide whether the tribunal’s determination was “consistent with the …[Defense Department’s] standards and procedures,” and it could decide whether use of those procedures in the detainee’s case “was consistent with the Constitution and laws of the United States of America.” Did Congress, by granting this complicated authority, give the courts back with one hand the very kind of habeas corpus review it had just taken away with the other? If so, it did not deprive the Guantánamo detainees of any habeas corpus right.35
In June 2008, in the case of Boumediene v. Bush, the Court decided these questions. The case concerned a group of Guantánamo inmates taken prisoner in several different countries, including Afghanistan, Bosnia, and Gambia. Each detainee denied he was an enemy combatant, but in each case the status tribunal held that the detainee was an enemy combatant. The detainees all filed habeas corpus petitions in the federal district court for the District of Columbia. After the Court decided Rasul in 2004, the lower courts began processing those filings in batches and disagreed about the results, so the court of appeals started to review those disagreements. But then along came the new 2006 act, which the court of appeals interpreted as foreclosing any further consideration of the prisoners’ petitions. The Supreme Court agreed to review that court of appeals decision.36
In Hamdan the Court had made clear that Congress could pass a new statute, directly authorizing special military commissions. But the Court had said nothing about habeas corpus. In particular, the Court did not, and it should not, promise Congress that it would simply approve as constitutional whatever statutory changes Congress chooses to make. Congress had made statutory changes, and they required the Court now to face a new issue—a constitutional issue: Did Congress’s statutory habeas corpus changes exceed the Constitution’s limits? Given the centuries-old importance of habeas corpus, the question of whether the Constitution itself granted Guantánamo prisoners the right to file the Great Writ was fundamental.
As previously noted, the Constitution says that Congress may “not … suspend[]” the “Writ of Habeas Corpus … unless when in Cases of Rebellion or Invasion the public Safety may require it.” No one claimed that Congress had applied the “Rebellion or Invasion” exception to suspend the writ. Instead, the government argued that Congress had not suspended the writ of habeas corpus, because prisoners like those at Guantánamo had never had a basic, constitutionally protected right to file a petition seeking the writ in the first place. (Recall that in Rasul the issue was whether the detainees had a statutory right to file habeas petitions.) The government argued that when the founders wrote the Constitution in 1789, no court would have issued that writ at the request of a noncitizen held outside the country. Therefore, the Guantánamo prisoners had no constitutional right to the writ. Congress could not have suspended any such right, for it could not take away something the prisoners never had.37
The Court, by a vote of 5 to 4, rejected the government’s argument. It held that the constitutional words “Writ of Habeas Corpus” did apply to Guantánamo’s prisoners and that Congress had unconstitutionally suspended the writ. Thus one cannot characterize Boumediene as a case in which the Supreme Court followed congressional directions or implemented Congress’s broad
er purposes. To the contrary, the Court invoked its ultimate judicial review power, holding that both Congress and the president had gone beyond the Constitution’s boundaries. Nonetheless, in doing so, the Court took account of the concerns of the other branches, interpreting the Constitution in a way that reflected an awareness of practical realities. Indeed, the Court used a standard that, in determining the reach of the Constitution’s habeas corpus guaranty, took account of “practical obstacles.”38
In concluding that the writ of habeas corpus was available to the detainees, Justice Kennedy, writing for the Court, first considered the basic values underlying the Constitution’s words. In 1215, King John signed the Magna Carta, in which he promised his barons that “[n]o freeman shall be … imprisoned … except … by the law of the land.” For centuries in England the writ of habeas corpus had helped make a practical reality of King John’s promise. From at least the seventeenth century, the writ allowed judges to ensure that neither the king nor other government officials could unlawfully imprison an individual. Because it prevented arbitrary imprisonment, Blackstone called habeas corpus “the BULWARK of the British Constitution.” The Court wrote that the writ “protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account.” With this background in mind, the Court wrote that the framers of our own Constitution “viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.” That is why they included “specific language in the Constitution to secure the writ and ensure its place in our legal system.”39
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