And that, ultimately, is the best defense of what O’Connor did. On affirmative action, she picked a result, and reached a compromise, that was broadly acceptable to most Americans. There was no formal limit on her power, but O’Connor’s extraordinary political instincts let her exercise her authority in a moderate way. In some basic, almost primal manner, O’Connor understood that twenty-five more years of racial preferences seemed the right amount of time. It is a scary prospect to consider what other justices in the Court’s history, including some of her contemporaries, would have done with the power that O’Connor arrogated to herself. Her judicial approach was indefensible in theory and impeccable in practice.
The Michigan cases were something of a rout for the conservatives. Kennedy wrote a separate opinion in Grutter saying that he, like Powell in Bakke, approved of the use of race in admissions but that the Michigan law school procedure looked too much like a quota for him to approve. Even Rehnquist avoided taking a stand on whether race could ever be considered. Only two justices, Scalia and Thomas, said directly that any use of race in admissions always violated the Constitution.
Thomas, probably the nation’s most famous beneficiary of affirmative action, wrote a passionate opinion denouncing the practice. He quoted the words of his hero Frederick Douglass: “What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us.?…All I ask is, give him a chance to stand on his own legs! Let him alone!” For all its rhetorical power, Thomas’s opinion represented only a fringe view—on the Court and in the nation at large.
Among the justices, especially Kennedy and O’Connor, the post–Bush v. Gore move to the left continued—and to some extent accelerated—after Grutter. Even Rehnquist almost brought what remained of his own federalism revolution to a close; he wrote the opinion in Nevada v. Hibbs, which upheld the authority of Congress to pass the Family and Medical Leave Act of 1993, a central accomplishment of the Clinton administration.
Then, in a complex series of cases, the Court struck down state and then federal criminal sentencing guidelines, against the wishes of the Bush administration. By a 6–3 vote, it overturned the Child Pornography Prevention Act, which made it a crime to create or possess “virtual” pornography, which used enhanced computer imaging rather than actual children. Even in several major criminal cases, the Court sided with the defendant and overturned convictions.
After 2000, the majority in Bush v. Gore—Rehnquist, O’Connor, Scalia, Kennedy, and Thomas—might have taken full control of the Court, but something close to the opposite took place. Their coalition crumbled. In the 2002 term, only five of the fourteen 5–4 decisions were decided by the bloc that prevailed in Bush v. Gore; in the 2003 term, it was nine of nineteen; in the 2004 term, it was four of twenty-two such cases. At first it was the legacy of Bush v. Gore that turned O’Connor and Kennedy toward their more liberal colleagues. Later, it was the Bush administration itself.
18
“OUR EXECUTIVE DOESN’T”
The burst of confidence in the military, and in the Bush administration, following the invasion of Iraq in the spring of 2003 was short-lived. A month after the argument in Grutter, on an aircraft carrier off the coast of San Diego, the president addressed a cheering crowd underneath a banner that read “Mission Accomplished.” But almost from that moment, the fortunes of the American occupation turned. A determined guerrilla insurgency killed more than three thousand American service members. Many thousands more Iraqis died. Elections were held, a constitution was passed, and a new government was established, but the American experience in Iraq turned out to be considerably more difficult than it had initially appeared. And just as the war turned sour, the first cases growing out of the administration’s broader war on terrorism reached the Supreme Court. They concerned an idyllic stretch of Caribbean coastline known as Guantánamo Bay.
After American and Cuban forces evicted the Spanish from Cuba in 1898, the United States military remained on forty-five square miles along the southern coast of the island. The American presence became official with a treaty signed by the two nations in 1903, eventually setting an annual rent at $4,085. To this day, the American government offers payment to the Cuban government every year, but during the nearly five decades that Fidel Castro has been in power, his government has accepted it only once.
The war in Afghanistan created an unprecedented level of activity at Guantánamo Bay and gave it international notoriety. On January 10, 2002, the military began moving prisoners there from Afghanistan, and all the armed services, not just the navy, were asked to run Joint Task Force Guantánamo. In a press conference that same day, Donald Rumsfeld, the secretary of defense, said that the prisoners were “unlawful combatants” who “do not have any rights under the Geneva Convention.” Among the rights granted by the Geneva Conventions is the right to an individual hearing to determine the status of each prisoner.
A chorus of international condemnation—from the United Nations, the European Union, and the Organization of American States, among others—cried out against the American government. But within the United States, in the fevered aftermath of the September 11 attacks, the Guantánamo detention and interrogation facility drew little notice and less controversy—at first.
The prisoners at Guantánamo, who eventually numbered about six hundred, were all accused Al Qaeda or Taliban members picked up on battlefields in Afghanistan and neighboring countries—the “worst of the worst,” as one American official put it. The notion that such despised and dangerous individuals might be able to challenge their incarceration in an American courtroom initially seemed close to outlandish. They were held in a foreign country; they were virtually incommunicado, limited to a single letter to a family member; they were allowed no visitors. But in early 2002, the family of an Australian national named David Hicks who was being held in Guantánamo reached out to lawyers at the Center for Constitutional Rights in New York, who agreed to file a lawsuit.
It was no coincidence that only the CCR, which stands well to the left of the American Civil Liberties Union in the spectrum of liberal legal interest groups, chose to challenge the American detention policy. In the early stages of the suit, the lawyers in charge could not have differed more from those directing the Michigan effort on affirmative action, with its roster of retired generals, corporate leaders, and a former Republican president. Led by a Minneapolis lawyer named Joseph Margulies, the CCR team sought assistance from several major Washington lawyers and law firms and were turned down by all. Guantánamo seemed nearly a fringe cause.
But as the case moved through the federal courts, and the near hysteria of the September 11 aftermath faded, the claims for the Guantánamo prisoners looked more plausible. The Bush administration had created an unusual legal category for those held on the American base. They were not criminal defendants, subject to the protections of the U.S. Constitution, but neither were they prisoners of war, whose treatment had long been governed by the Geneva Conventions.
Rather, the Guantánamo detainees were labeled “enemy combatants,” who could be held and interrogated until the war on terror was over—that is, indefinitely. One reason the military refused to treat the Guantánamo detainees as POWs was because, under the conventions, such prisoners may not be interrogated. And Guantánamo was designed from the start as an interrogation facility where prisoners could be questioned in total isolation, day after day and month after month, without outside interference or knowledge.
Furthermore, the government asserted in response to the CCR lawsuit, the plaintiffs had no right even to file the case. Because the detainees were non-American citizens held in Cuba and that nation had “ultimate sovereignty” over the base, the lawsuit was the equivalent of a foreigner’s filing a case from an overseas battlefield—something that American courts never allowed. The lower courts agreed and ultimately dismissed the case, which came to be known as Rasulv. Bush. Ironical
ly, Shafiq Rasul himself was among the first prisoners released from Guantánamo, while the case was pending before the Supreme Court; still, his name remained as lead plaintiff. Two related cases, concerning the similarly unlimited detention within the United States of American citizens named Yaser Hamdi and Jose Padilla, worked their way toward the Court at the same time.
After the Supreme Court granted cert in Rasul, Hamdi, and Padilla, in late 2003 and early 2004, the Bush administration began to take the cases more seriously. At last, after two years, it allowed Hamdi and Padilla to meet with their lawyers. Secretary Rumsfeld announced that the military was creating “administrative review boards” to evaluate the status of each prisoner in Guantánamo. The procedures gave the detainees no right to counsel, no right to confront the witnesses against them, and no right of appeal, but they allowed administration lawyers to say the government was at least doing something to assess whether the detainee deserved to remain in custody. The government also asserted that the prisoners had no right even to this meager procedural safeguard; it had been provided “solely as a matter of discretion and does not confer any right or obligation enforceable by law.” Mostly, the Bush position remained unchanged—that the war on terror meant that the Guantánamo prisoners deserved no rights, or even a day, in an American courtroom.
The Bush legal team, led by Ted Olson, the solicitor general, brought the same moral certainty to the Supreme Court that the Republican political operation put forth to voters. The issues were straightforward, the choices binary: the United States or the terrorists, right or wrong. Standing up to argue in Rasul, Olson laid the same kind of choice before the Court. “Mr. Chief Justice, and may it please the Court: The United States is at war,” Olson began with heavy portent. “It is in that context that petitioners ask this Court to assert jurisdiction that is not authorized by Congress, does not arise from the Constitution, has never been exercised by this Court.”
But if this kind of talk was intended to intimidate the justices, as it cowed so many others, the tactic did not work. Indeed, it back-fired. “Mr. Olson, supposing the war has ended,” Stevens jumped in, “could you continue to detain these people on Guantánamo?” Of course we could, Olson said. In other words, the military could detain Rasul and the others whether or not there was a war.
“The existence of the war is really irrelevant to the legal issue,” Stevens said.
“It is not irrelevant because it is in this context that that question is raised,” Olson replied weakly.
“But your position does not depend on the existence of a war,” Stevens insisted, and Olson had to concede it did not. So in just the first moments of the argument, Stevens had shown that the Bush administration was claiming not some temporary accommodation but rather a permanent expansion of its power for all time, in war or peace. And Stevens was showing further that Olson’s rhetorical flourish—“The United States is at war”—was nothing more than posturing.
The following week, on April 28, the Hamdi and Padilla cases were argued, and again the administration put forth its view of unchecked executive authority. Jose Padilla, an American citizen, had been arrested at O’Hare airport in Chicago and held indefinitely on suspicion of ties to Al Qaeda. According to the Justice Department, even though Padilla was an American citizen held on American soil, he had no right to challenge his incarceration, even if he wound up being imprisoned for the rest of his life. Paul Clement, the deputy solicitor general, asserted to the justices that Congress’s authorization of the “use of all necessary and appropriate force” following the September 11 attacks justified the unlimited detention of Padilla. In Clement’s view, the courts had no right to stop—or even hold a hearing about—Padilla’s incarceration, because he was classified as an enemy combatant.
In response, Ginsburg asked a farfetched hypothetical question to test the limits of the government’s position. “What inhibits it? If the law is what the executive says it is, whatever is ‘necessary and appropriate’ in the executive’s judgment,” she said. “So what is it that would be a check against torture?”
“Well, first of all there are treaty obligations,” Clement said, “but the primary check is that just as in every other war, if a U.S. military person commits a war crime, by creating some atrocity on a harmless detained enemy combatant or a prisoner of war, that violates our own conception of what’s a war crime and we’ll put that U.S. military officer on trial in a court-martial.”
But Ginsburg pursued the issue. “Suppose the executive says, ‘Mild torture, we think, will help get this information.’ It’s not a soldier who does something against the code of military justice, but it’s an executive command. Some systems do that to get information.”
“Well,” Clement replied, his voice touched with a hint of indignation, “our executive doesn’t.”
About eight hours later, on the evening of the arguments in Hamdi and Padilla, the CBS News program 60 Minutes II broadcast photographs of U.S. Army personnel documenting physical and sexual abuse of prisoners at Abu Ghraib prison. The photographs, which immediately became symbols of the war, showed U.S. soldiers posing beside naked Iraqi prisoners stacked in a human pyramid, as well as a prisoner who was forced to stand on a box, his head covered by a hood and electric wires apparently attached to his body. (CBS executives had withheld the report for two weeks at the request of Defense Department officials but went ahead with the broadcast when they learned that The New Yorker was planning a report on the subject by Seymour Hersh. The magazine story was released on May 1.) As Margulies, the lawyer for Rasul and other Guantánamo detainees, recalled afterwards, “These photos proved to be the most powerful amicus brief of all.”
The Abu Ghraib disclosure set off several months of intense public attention to the issue of torture by American personnel in Iraq and Guantánamo. The investigations revealed extensive abuse of prisoners in Iraq by low-level military personnel but, more importantly, considerable support for torture at the highest levels of the Bush administration. While the justices were preparing their opinions in Rasul, Hamdi, and Padilla in June 2004, the most sensational document on the subject came to light—the “torture memo.” In the summer of 2002, Alberto R. Gonzales, then the White House counsel, had asked the Justice Department to research the question of whether U.S. personnel involved in the war on terror were constrained by the federal law, which bans “cruel, inhuman, or degrading treatment” either inside or outside the United States.
The response came on August 1, 2002, from Jay Bybee and John Yoo, two senior officials who gave a virtually unrecognizably narrow definition of torture, which the law said was “severe physical or mental pain or suffering.” To these lawyers, “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture,…it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” What was more, Bybee and Yoo said, the president had inherent authority to overrule the statute and direct any interrogation technique that he believed was necessary. By the time the torture memo was released, Bybee had already been confirmed to a federal appellate judgeship and Yoo had returned to a professorship at the law school of the University of California at Berkeley. Yoo had been a law clerk to Thomas, and several other former Thomas clerks had also played important roles in formulating the Bush administration’s legal justifications for the war on terror.
It is too simplistic to say that the disclosures about Abu Ghraib and torture policy determined the outcome of the Supreme Court’s rulings in the three terrorism cases, but it is surely true that the news had an impact. In any event, the cases turned into humiliating defeats for the administration. In Rasul, the main case, the Court ruled 6–3 that the Guantánamo detainees did have the right to challenge their incarceration in a U.S. district court. In Hamdi, the Court again ruled 6–3 that the government co
uld not prevent an American citizen from challenging his or her detention in federal court. In Padilla, the Court gave the administration a purely procedural victory, ruling only that the plaintiff should have brought his case in South Carolina instead of New York.
Stevens may have given the Lawrence case to Kennedy and Grutter to O’Connor, but he wasn’t giving the Rasul assignment away. As for so many other men of his generation, the defining event of Stevens’s youth was his service in World War II. Stevens had been raised in comfortable circumstances; his family built and ran the Stevens Hotel, a block-long Chicago landmark that was later renamed the Chicago Hilton. Stevens graduated from the University of Chicago, Phi Beta Kappa, in 1941 and planned to go to graduate school to study Shakespeare. But on the eve of American involvement in the war, several of his professors were working as talent spotters for the navy, and they prevailed on him to sign up. Stevens did, on December 6, 1941, allowing him to joke that his enlistment prompted the attack on Pearl Harbor the following day.
Stevens served in the Pacific for four years on the staff of Admiral Chester Nimitz and won a bronze star. He did intelligence work, helping to break Japanese codes, and in later years often spoke of his pride in his service. His intense patriotism prompted the most out-of-character vote of his judicial career, when he sided with the conservatives in the famous flag-burning case of 1989. In his dissent in that case, Stevens said burning the flag was not protected by the First Amendment, because “it is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.”
The Nine Page 28