The Rights of the People

by David K. Shipler

  The Supreme Court’s decision in Hamdi v. Rumsfeld set in motion a small cascade of government capitulation. Both other cases of internal enemy combatants were eventually transferred to the criminal courts, but only after years of further delays and maneuvers by the Bush administration’s ideologues, who treated each Court opinion as if it set no precedent and carried no impact beyond the specific defendant. This was a kind of constitutional apostasy, a defiance of the intricate culture of willing compliance with the rule of law. It did not take a scholar to see that what the Court said about Hamdi’s right to habeas corpus would apply to the two others seized as enemy combatants, but the president and his men ignored and evaded adverse rulings to the extent possible.

  The other American, Jose Padilla, was arrested at Chicago’s O’Hare Airport on May 8, 2002, after flying in from Zurich. His name had been mentioned during the interrogation of Abu Zubaydah, a training camp personnel clerk originally thought to be third or fourth in the al-Qaeda hierarchy,30 who described Padilla as part of a plot to detonate a “dirty bomb” that would spread radioactivity somewhere inside the United States.31

  Padilla had been convicted for murder as a juvenile and then for gun possession in Florida. He converted to Islam in prison, moved to Egypt after his release, and traveled to Saudi Arabia, Pakistan, and Afghanistan, where in 2000 he allegedly enrolled in an al-Qaeda camp.

  He was held for a month in civilian custody as a material witness, which is why he was assigned a lawyer by the court, but was then designated an enemy combatant by Bush and spirited away to isolation in the navy brig in Charleston, as the White House asserted the president’s power to keep him locked up indefinitely without charges or trial. Bush’s declaration, “based on the information available to me from all sources,” came in a censored one-page order completely devoid of evidence or specifics.32 The “sources” turned out to be Zubaydah and at least one other captive whose information was tainted by torture. The unverified statements from interrogations kept Padilla in the brig for one year and eight months before he saw an attorney, and three years and eight months before finally being turned over to the criminal justice system for indictment and prosecution.

  The decision to use the courts was effectively forced by the courts. While Padilla’s habeas corpus petition was working its way through the federal judiciary, the Supreme Court granted Hamdi’s habeas appeal. Rather than argue essentially the same case again, the government delayed, then finally transferred Padilla to the criminal justice system, though not until shortly before his appeal was to be heard by the Supreme Court.33

  He claimed that he was tortured in the brig. But his statements, evidently coerced, were touted by officials as evidence of al-Qaeda plots foiled. These included the “dirty bomb” scheme, training by al-Qaeda in explosives, and a plan to “undertake a mission to blow up apartment buildings in the United States using natural gas,” a Senate committee was told by Deputy Attorney General James Comey. During interrogations, he allegedly admitted to laying plans with Khalid Sheikh Mohammed and other prominent al-Qaeda figures.34

  This may have been true, but it was impossible to know, since the information was given under duress, a process the military didn’t want disrupted. “Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence gathering tool,” said the head of the Defense Intelligence Agency, Vice Admiral Lowell E. Jacoby, in arguing that Padilla should be denied access to a lawyer. “Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example—even if only for a limited duration or for a specific purpose—can undo months of work and may permanently shut down the interrogation process.”35

  In the Charleston brig, Padilla was manipulated with threats of being sent to another country or to Guantánamo Bay, his attorney contended in a brief. Using various techniques, military interrogators maneuvered him into helplessness: a pillow and sheet would be provided, then removed; a mirror would be given, then taken away; he was kept in bright lights, then in complete darkness, locked in a cold cell, denied a shower for weeks, allowed to exercise only at night.

  “He was threatened with being cut with a knife and having alcohol poured on the wounds,” according to the brief. “He was also threatened with imminent execution. He was hooded and forced to stand in stress positions for long durations of time. He was forced to endure exceedingly long interrogation sessions, without adequate sleep, wherein he would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla. Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.”36 (Drugging was banned by the Justice Department guidelines on torture.)

  This may have explained the military’s restrictions when he finally got to see an attorney. Just before the Supreme Court was expected to decide whether to hear the case, the government suddenly defused a key issue by calling one of his lawyers, Andrew Patel, to say that he and his colleague could see their client. But there were conditions: They could not ask Padilla any questions about the conditions of his incarceration, and the entire conversation would be audiotaped and videotaped while an officer stayed in the room, a breach of attorney-client privilege.

  This was hardly the way Patel was used to meeting with clients, even those accused of heinous crimes. Padilla had been isolated so completely that he did not even know that he had a case pending before the Supreme Court. He was about to find out. Patel shipped twenty pounds of transcripts and filings to the brig for Padilla to read, but because of the monitoring he had no intention of letting Padilla say anything during the session. Patel would do all the talking, explaining his case. “I will tell him that one day I’d like to ask him many questions, and I hope we can,” Patel said before he met with Padilla. Then he added: “My career has been spent as a criminal defense attorney, which means I deal with aberrant human behavior. Usually it’s aberrant behavior by my clients, not by the government.”

  Padilla’s complaints of abuse seemed at least partly valid, judging by the government’s inability to retain the gravest accusations against him as he was transferred to the civilian justice system. Had he confessed to the most egregious plots voluntarily and without coercion, his statements could have been put into evidence, and certainly would have been. But since coerced statements are inadmissible under the Fifth Amendment, the charges were peeled away layer by layer until a prosecutable crime could be found. The radiological bomb plot, for which his arrest had been trumpeted by Attorney General John Ashcroft and certified in an affidavit by a Defense Department official, mysteriously disappeared, with no announcement or explanation.37 So did the plan to blow up apartment buildings. Both charges just vanished from government documents; neither was mentioned in his criminal indictment. Their reliability appeared to have been contaminated by their origins: torture of Padilla inside the country and of Zubaydah outside. The government evidently concluded that the allegations could not be sustained in a normal, constitutional court of law.

  Instead, Padilla and several others were charged with membership in a cell that conspired to commit murder overseas. It didn’t get much more specific, but the main evidence, his application form to attend an al-Qaeda training camp, convinced a Miami jury. The government asked for a life sentence, and the judge gave him less—seventeen years and four months—because of the “harsh” conditions of his imprisonment in the brig, and the fact that “there is no evidence that [Padilla] personally killed, maimed, or kidnapped.”38

  The third “internal combatant,” Ali Saleh Kahlah al-Marri, a legal resident of Illinois from Qatar, was shifted to the civilian system by the Obama adminis
tration in February 2009 after the Supreme Court had agreed to take his case the previous December.

  On September 10, 2001, he had come to the United States with his wife and children for a master’s degree in computer science and was eventually accused of association with al-Qaeda. Like Hamdi, al-Marri had run afoul of the conservative Fourth Circuit, where a three-judge panel had first ruled in his favor, only to be overturned by the entire court sitting en banc, which decided narrowly that the president had the power to detain a “U.S. person” indefinitely. This defied the opinions in Hamdi and in cases brought by prisoners at Guantánamo, and so the Supreme Court, in declaring the al-Marri appeal moot after he was placed in the criminal justice system, also vacated the Fourth Circuit’s opinion, fortunately. That cut off the attempt by the conservative appeals court to permit unlimited executive power to arrest and detain indefinitely. He was indicted, pleaded guilty, and was sentenced to eight years for “conspiracy to provide material support” to a foreign terrorist organization, a broad statute that has been used extensively against terrorist suspects.39

  For years, an odd minuet was danced by the president, the Congress, the Supreme Court, and the prisoners. While internal enemy combatants were asking for a fair hearing in court, external combatants in Guantánamo were pursuing the same goal in parallel litigation. They succeeded on paper, winning protection from a slim majority of the justices, but hardly any received their objective, fact-finding trials. More significantly for the whole country and its long-term constitutional health, the extraordinary regime of executive power sought by Bush was not swept cleanly away. A series of rulings by the Supreme Court inspired a series of laws by Congress, together leaving a dangerous legacy that Obama has mitigated but declined to erase. Foreigners and American citizens inside the United States, as well as outside, remained susceptible to presidential designation as enemy combatants, with foreigners subject to military commissions lacking sufficient guarantees to minimize the chance of error. That these powers were not used inside the country—not yet—was small comfort.

  The Bush administration had argued that the Constitution and the courts did not reach to Guantánamo Bay, leased perpetually from Cuba, because the base was not on American soil. But since the United States had complete authority over the territory, and Cuba had none at all, the Supreme Court declined to participate in the fiction and ruled in Rasul v. Bush in 2004 that Guantánamo prisoners retained their habeas right.40 After Hamdi the same year, containing the Court’s admonition that some meaningful finding of fact was required, the Pentagon established Combatant Status Review Tribunals with one-sided rules, not to “try” enemy combatants so much as to process them. Congress responded with the Detainee Treatment Act of 2005. (Although the terms “tribunals” and “commissions” were often used interchangeably, they were to have different roles, the tribunals to determine whether the prisoners could be labeled enemy combatants, the commissions to determine guilt and punishment.)

  The 2005 law stripped Guantánamo inmates—mentioning them explicitly—of their habeas right granted in a federal statute.41 It made no mention of the two remaining internal combatants, and it did not purport to activate the Constitution’s suspension clause by a finding that the country was subject to “Rebellion or Invasion.”

  Consequently, the Court found the following year that Congress had not suspended habeas corpus, which remained available to the Guantánamo inmates. Ruling five to three in Hamdan v. Rumsfeld, a case brought by a Yemeni who had been a driver for bin Laden, the Court also struck down the Combatant Status Review Tribunals the executive branch had unilaterally created, finding that they violated both the four 1949 Geneva conventions and their incorporation into the Uniform Code of Military Justice (UCMJ), which provides that military trials, “insofar as practicable,” follow court-martial procedures. This pleased many military lawyers in the judge advocates general’s divisions, who argued publicly that the court-martial model, with constitutional protections resembling those in criminal court, should be used to try terrorism suspects held at Guantánamo.

  The president had failed to make the required determination that following the UCMJ was not practicable, the Court noted, and the tribunals were “not expressly authorized by any congressional act.” Four of the justices declared, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.”42

  So he did, and the resulting Military Commissions Act of 2006 awarded the president some of the most awesome powers in American history. Again it denied habeas corpus to foreigners detained as enemy combatants, but this time there was no geographical restriction; they could be seized and held anywhere, in Afghanistan or Alabama, Iraq or Indiana. It permitted violations of practically every critical right in the Fourth, Fifth, and Sixth Amendments, allowing evidence obtained through warrantless searches, coerced interrogations, and hearsay—which meant that a government agent could testify that a witness had said something, without the witness being brought for cross-examination.43

  Again the Supreme Court had to weigh in, and in 2008 again ruled, five to four, that people did not lose their constitutional right to habeas corpus by being labeled enemy combatants or being jailed at Guantánamo. “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say what the law is,” Justice Anthony Kennedy wrote for the majority in Boumediene v. Bush. “The habeas writ is itself an indispensable mechanism for monitoring the separation of powers.… If that privilege is to be denied them, Congress must act in accordance with the Suspension Clause’s requirements,” which would mean a determination that the country faced “Rebellion or Invasion.”44 This the Congress stopped short of doing.

  In considering whether an adequate fact-finding substitute for a habeas writ existed, the Court in Boumediene cast aspersions on the military tribunals, which were to decide whether a person could be held as an enemy combatant. The tribunals posed a “considerable risk of error” by limiting the defendant’s ability to confront witnesses, rebut evidence, and introduce exculpatory material, the Court ruled. The justices did not explicitly evaluate the next step in the process—the military commissions that were to conduct full trials of suspects whom the tribunals designated “unlawful enemy combatants.” But under the standards set by the Court, the commissions wouldn’t have passed muster either.

  To protests from human rights and civil liberties groups, Obama and the Democratic-led Congress retained military commissions as an option for trying foreign citizens seized in the United States or elsewhere and accused under a broad swath of thirty-two crimes. These included far more than terrorism and violations of the laws of war: also hijacking, rape, spying, and lesser offenses commonly tried in criminal courts. Even while patching up most of the rights that had been shredded by the 2006 law, the Military Commissions Act of 2009 created a parallel judicial system—located in the executive branch—to handle a vast array of cases involving “alien unprivileged enemy belligerents,” the new name for “enemy combatants.”45 It could be used inside the United States, but not against American citizens, leading several senators to propose stripping accused terrorists of their citizenship. A president and his attorney general could choose whether to send such defendants to trial before civilian judges and citizen jurors in federal criminal courts, or before panels of military officers in commissions. This was an enormous grant of executive power to evade a court system whose procedures have been seasoned by generations of constitutional precedent.

  The new law significantly protects defendants’ rights, although with caveats not yet precisely defined. Appeals from the commissions would be heard by the federal circuit court in D.C., which could even second-guess a guilty verdict by reexamining the evidence.46 Contrary to the Bush approach, statements by the accused or witnesses would be inadmissible if made under torture or “cruel, inhuman, or degrading treatment,” but less severe coercion might be allowed during capture or com
bat if a military judge finds the information “reliable and possessing sufficient probative value.” The Fourth Amendment is not suspended inside the country, as it was under Bush’s commissions; evidence obtained without proper warrants would be admissible only if seized overseas.

  As in a civilian court, the prosecution must disclose facts that impeach witnesses or support innocence. The accused may summon his own witnesses and confront those against him, but hearsay may also be admitted under highly restrictive conditions: if the defense is told how it was obtained, has time to counter it, and the live witness is unavailable. As in civilian courts, complex procedures governing classified evidence seem, on paper, to protect the accused against conviction by secret information he cannot challenge. A charge that relies on evidence the government doesn’t want to declassify and disclose may be reduced or dismissed by the judge—a commissioned officer who is also an attorney.

  And that is one of the problems. Some military judges demonstrated remarkable independence in the abortive Guantánamo proceedings. Moreover, President Obama and his aides seemed initially inclined to use the commissions rarely and discreetly.47 Staffed with good people, the revised commissions may produce honest fact-finding to determine guilt or innocence accurately. But American liberty cannot depend on individual goodness alone. Judges and presidents come and go; some have yielded the country’s values to the stresses of emergency and crisis. Obama has done some of that himself. Our history contains no guarantee that one or another citizen who rises to authority will wield the immense power of the state with wisdom, fairness, and humaneness. The only guarantee, if it exists at all, is embedded in our messy, complicated system that fragments and restrains that power.