A War Like No Other
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The position of Justice Kennedy—then a very recent appointee to the Court—is harder to characterize. He was the crucial fifth vote that Chief Justice Rehnquist needed to endow his opinion with the status of law, and Justice Kennedy obliged him. Justice Kennedy began his separate concurrence by announcing that he joined the chief justice’s opinion. He also said that his views did not depart in “fundamental respects” from those expressed by the chief justice,44 but one is left to wonder whether this was in fact the case. Although he rejected the view that the Fourth Amendment’s warrant requirement should be applied to the search of a foreign home of a non-resident alien, his reason was quite different from Rehnquist’s. He did not read the phrase “the people” as a restriction on the universe of persons protected. As he put it, “explicit recognition of ‘the right of the people’ to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it.”45 In contrast to Chief Justice Rehnquist, Justice Kennedy simply posited that adherence to the Fourth Amendment warrant requirement abroad would be “impracticable and anomalous.”46
Even more important, Justice Kennedy seemed to give a certain measure of extraterritorial force to the Constitution. He began from the proposition that “it is correct . . . that the government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic.”47 Yet, building on a view articulated by the second Justice John Harlan, he maintained that this does not require that the government necessarily apply each and every provision of the Constitution abroad. Rather, the constitutionality of the government’s actions abroad should be judged by a flexible standard based on some notion of fundamental fairness. In conducting searches of the homes of noncitizens abroad the Constitution does not require federal agents to obtain a warrant, as the Fourth Amendment might be read to require, but only that noncitizens be treated fairly. Justice Brennan’s constitution would also allow adjustments to be made as to how the Bill of Rights is applied abroad but, as with the doctrine of selective incorporation, always within the disciplining force of the text of the amendments themselves. Justice Kennedy’s constitution is more flexible, and thus less clear. My hunch is that Justice Brennan’s approach would yield results more approximating justice than Justice Kennedy’s, but both describe a constitution without borders.
Such a view of the Constitution makes an appearance in Rasul, though in the most oblique way. When Justice Stevens cited Verdugo-Urquidez in footnote 15 in Rasul, he referred only to Justice Kennedy’s concurring opinion in that case, not Chief Justice Rehnquist’s opinion for the Court. The significance of that selective reference is not clear to me. Perhaps Justice Stevens meant to embrace Justice Kennedy’s constitutional cosmopolitanism. Or, conceivably, the reference was offered as an inducement for Justice Kennedy to join the majority opinion. As it turned out, however, Justice Kennedy did not join Justice Stevens’s opinion, but wrote a short separate concurrence. In it, he applied the same flexible approach outlined in his concurrence in Verdugo-Urquidez, again expressing unease with creating “automatic” rules.
Like Justice Stevens, Justice Kennedy acknowledged the unique status of Guantánamo—that for all practical purposes it was a territory of the United States. Yet he refused to treat the case as though it were nothing more than an exercise in statutory interpretation. Justice Kennedy understood that the petitioners had to have some constitutional rights in order for there to be any point in the habeas proceeding at all. Although he cautioned against judicial interference with the rightful prerogatives of the president acting as commander in chief, Justice Kennedy recognized that “there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated.”48 The touchstone for Justice Kennedy was “military necessity”49—only exigencies of war would prevent the exercise of the judicial power implicit in the writ of habeas corpus. He also believed that the government’s insistence on military necessity in the case at hand was contradicted by the fact that prisoners were being held indefinitely (justified by the government on the theory that they were illegal enemy combatants, comparable to members of irregular militias, and thus not entitled to the usual protections of the Third Geneva Convention for prisoners of war, including repatriation at the end of the hostilities). Justice Kennedy wrote, “[p]erhaps, where detainees are taken from a zone of hostilities, 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.”50 Such a flexible or variable approach has its pitfalls because it vests enormous discretionary power in the judiciary, but at least one can see within it the possibility of confronting on a constitutional basis possible government abuse of alien prisoners who are not American citizens, such as occurred at Abu Ghraib, provided of course that Justice Kennedy’s insistence upon fundamental fairness is not conditioned upon the anomalous territorial status of Guantánamo.
No one else joined Justice Kennedy’s opinion. The timidity of the majority in Rasul, as well as that of the majorities responsible for Padilla and Hamdi, is no accident but, rather, a product of the situation in which the justices found themselves. Faced with the events of September 11, and then the invasions of Afghanistan and Iraq and the military occupations of these countries, the demands for power by the president and his administration must have pressed heavily on the justices. Although the justices are committed to the rule of law and the protection of the Constitution, they also see themselves as responsible for protecting the interests of the nation they serve. The justices are practical people, so they searched for ways to honor the Constitution without compromising vital national interests. As a result, they told Jose Padilla to start over in another court, they provided Yaser Hamdi with an opportunity to contest the legality of his classification but made it possible for that hearing to be conducted by a military tribunal, and they allowed the prisoners in Guantánamo to begin habeas proceedings without telling them in any clear way what rights they might assert in those proceedings. What is missing from this calculus—and, in my judgment, from all three of these much-discussed cases—is a full appreciation of the value of the Constitution as a statement of the ideals of the nation and as the basis of the principle of freedom and, even more, a full appreciation of the fact that the wholehearted pursuit of any ideal requires sacrifices, sometimes quite substantial ones. It is hard for the justices—or, for that matter, anyone—to accept that we may have to risk the material well-being of the nation in order to be faithful to the Constitution and the duties it imposes. Still, it must be remembered that the issue is not just the survival of the nation—of course the United States will survive—but the terms of survival.
Prologue to Chapter 3
Trevor Sutton
Minimalism is a theory of—or, since proponents of minimalism eschew theories, an approach to—judicial decision making according to which judges should decide cases on the most limited grounds available. Minimalism’s most famous advocate, Professor Cass Sunstein, described minimalist judges as those who “seek to avoid broad rules and abstract theories, and attempt to focus their attention only on what is necessary to resolve particular disputes.” Sunstein contrasts minimalism with the judicial philosophy of “those who seek to decide cases in a way that sets broad rules for the future and that also gives theoretical justifications for outcomes.” Minimalist jurists are modest, Sunstein argues. They recognize that the risk of judicial error is substantial and grave, and strain to avoid foreclosing other decisions in other cases through overbroad rulings. The paradigmatic minimalist jurist, in Sunstein’s view, is Justice Sandra Day O’Connor, although Sunstein also claims Justices Ruth Bader Ginsburg, David Souter, Stephen Breyer, and Anthony Kennedy as minimalists. Justice John Paul Stevens, whose opinions in Rasul and Hamdan se
rve as the central examples of minimalism’s dangers in the following essay, depended on all four of these jurists to form a majority.
Sunstein sees many advantages in a minimalist approach to jurisprudence, but the virtue he is most eager to emphasize is minimalism’s “close connection” with democracy. Minimalist judges promote democratic values, Sunstein argues, by confining their legal analysis to the unique features of the case before them, thereby reserving larger questions for the political branches. In Sunstein’s view, broad rulings, even when they are correct, run the risk of short-circuiting “the kind of evolution, adaptation, and argumentative give-and-take that tend to accompany lasting social reform.” Minimalism, by contrast, “requires the legislature to make crucial judgments” by “spurring processes of democratic deliberation.” Many of the examples Sunstein gives in his minimalist opus, One Case at a Time, involve judges applying narrow constitutional principles to fact-specific inquiries. But sometimes the imperatives of minimalism can lead jurists to shun a constitutional resolution in any form and dispose of a case on purely statutory grounds. Although Owen Fiss’s belief in the principle of freedom, examined in several essays in this volume, stands in opposition to both of these forms of minimalism, it is the second, statute-focused variety at which “The Perils of Minimalism” takes special aim.
This chapter, “The Perils of Minimalism,” was first presented as a lecture at Tel Aviv University in 2008, and was later published in Theoretical Inquiries in Law. Both versions were prepared after the Supreme Court’s decision in Hamdan v. Rumsfeld and Congress’s enactment of the Military Commissions Act of 2006 in response to that decision, but before the Court ruled in Boumediene v. Bush that foreign nationals detained at Guantánamo had a constitutional right to seek habeas corpus. Although Boumediene, perhaps to an even greater degree than Hamdi, was heralded as a powerful victory for constitutional principles, with the benefit of hindsight it is possible to recognize the deficiencies of the decision. To begin with, access to habeas has had little practical effect on the Guantánamo detainees’ quest for freedom, in large part because of the lack of clarity surrounding the scope of habeas review and the general skepticism of the judges of the District of Columbia Circuit toward detainee claims. In addition, the multivariate test devised by Justice Kennedy to determine the availability of habeas has created significant uncertainty, specifically with regard to the writ’s availability in Bagram prison in Afghanistan. Moreover, although Boumediene, unlike Hamdan, dared to make a constitutional pronouncement, it nevertheless also may be regarded as a minimalist opinion, for it sought to resolve only the less controversial of the two issues examined in Hamdan (habeas), and through its silence perpetuated the implicit premise of Hamdan that military commissions are not constitutionally defective.
Guantánamo remains open in 2015, and the use of military commissions to try alleged terrorists continues under President Obama despite his campaign promise to close the prison and his aborted efforts to try some high-profile detainees in civilian courts. That this state of affairs persists despite more than a decade of litigation and several Supreme Court decisions celebrated as “landmark” civil liberties victories owes much to the Supreme Court’s preference for the passive virtues of minimalism at the expense of a full recognition of its responsibility to nourish and protect the Constitution.
Chapter 3
THE PERILS OF MINIMALISM
Cuba is an island 112 miles off the coast of Florida. The United States freed it of Spanish dominion in the Spanish-American War of 1898 but did not take possession of Cuba as spoils of war. Rather, it contented itself with a 45-square-mile area on the southeastern corner of the island, known as Guantánamo Bay, which has been an American naval station ever since.
As a purely formal matter, the United States occupies Guantánamo under a lease, which was first executed in 1903 and modified in 1934. The lease reserves “ultimate sovereignty” in Cuba, but it has no term. The United States possesses the unilateral power to terminate the lease, and has occupied and maintained exclusive control of the territory for more than a century.
Each year the United States tenders the rent—approximately $4,000—but for decades, the Castro government has refused to accept it. The Guantánamo Naval Station has its own residences and stores, some of which are well-known American franchises, and it is separated from the rest of Cuba by an extensive fencing system. There is no exchange between the rest of the island and the U.S.-run naval station, with the exception of a handful of elderly Cuban employees. Cuban law, such as it is, does not reach Guantánamo.
In January 2002, as the initial phase of the war in Afghanistan still raged, the Bush administration decided to open a prison in Guantánamo, and it has interned hundreds of men there who were captured in that war. Over the years, it has been used to detain al-Qaeda suspects seized in a wide number of countries—including Bosnia, Thailand, and Zambia—but Guantánamo remains first and foremost a prison for men captured in Afghanistan or near the border in Pakistan. None of the Guantánamo prisoners is an American citizen. At its height, between six hundred and eight hundred men were imprisoned at Guantánamo.
The United States invaded Afghanistan in October 2001 and ousted the Taliban in less than six months. Under the oversight of the United States and its allies, by the end of 2004 the Afghan people adopted a constitution and held democratic elections. At that point, the war in Afghanistan appeared at an end. Even though there is a growing insurgency in parts of that country, all claims of military exigency that might have justified the initial detention policy at Guantánamo today seem stale. It is important to remember, however, that the United States invaded Afghanistan not simply to oust the Taliban regime for supporting and protecting al-Qaeda but also, and perhaps more important, to vanquish al-Qaeda itself. This objective has not been achieved, and it is this larger conflict between al-Qaeda and the United States that has been used to justify the continuing detention of the Guantánamo prisoners.
The basic constitutional question posed by Guantánamo is whether the prisoners held there have any constitutional rights that might be protected by the courts and, if so, what those rights might be. This may not seem much of a question in many democracies throughout the world, including Israel, because they view their constitutions in universalistic terms. The guarantee of human dignity, for example, controls the actions of Israeli officers wherever they act and against whomever they act.1 The U.S. Supreme Court moved toward such a cosmopolitan conception of the U.S. Constitution during the Warren Court era, but starting in 1990 it headed in a different direction.
The issue arose in a case involving a search of the home—in Mexico—of a Mexican citizen who had been seized—also in Mexico—by agents of the United States and who was then taken for trial to the United States.2 The search had been conducted by American officials and was challenged as a violation of the Fourth Amendment. Chief Justice William Rehnquist, purporting to speak for a majority, wrote an opinion that espoused a more nationalist conception of the Constitution. According to him, the Constitution protected American citizens from the actions of U.S. officials no matter where they were located. It also protected foreign nationals when they were living in the United States and were part of the American political community, but the Constitution, reasoned Rehnquist, afforded no protection to foreign nationals abroad. The Bush administration’s decision to transform Guantánamo into a prison rests on the assumption that it, like Mexico, is not part of the United States and that the prisoners, since they are all aliens, cannot claim the protection of the Constitution and the various legal procedures, such as habeas corpus, that could secure that protection.
For their part, the Guantánamo prisoners and their lawyers challenged the legality of their detention and thus contested the scope and force of Rehnquist’s 1990 ruling. Rehnquist had emphasized the special wording of the Fourth Amendment, which speaks of “the right of the people,” and thus it was not at all clear that the 1990 case applied to provisions
such as the Due Process Clause of the Fifth Amendment, which protects the life, liberty, and property of “any person.” A question could also be raised as to whether Rehnquist’s opinion had the backing of a majority and thus governed. The crucial fifth vote came from Justice Anthony Kennedy, then a recent appointee, who said that he joined Rehnquist’s opinion, but then went on to express the view that “the Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic.”3 He implied that the government might be obliged to respect certain basic rights even when acting overseas, though constitutional norms would have to be adjusted to take account of the different contexts. Kennedy thought the phrase “the right of the people” appearing in the Fourth Amendment was not a term of limitation but more a rhetorical flourish to emphasize the rights being conferred.
On two separate occasions, once in June 2004 and then again in June 2006, the Supreme Court addressed the claims of the Guantánamo prisoners. Both decisions rebuffed the Bush administration and received banner headlines in the press. Such results were indeed remarkable because a majority of the justices seemed to cut through a tradition in American history of judicial deference to the executive on military matters. Yet, on closer inspection, these victories for the Guantánamo prisoners were less momentous than they first appeared. Rather than resolving the basic constitutional claims of the prisoners, the Court based these decisions entirely on statutory grounds.