by Fiss, Owen
Of course, choice will always remain for the individual justice, and for him or her minimalism might therefore be viewed as a decisional strategy. On the issue of the availability of habeas, Justice Kennedy rejected a minimalist approach in Rasul and turned his back on the majority. In contrast to Stevens, who wrote for the majority, he refused to treat the Guantánamo prisoners’ right to habeas as purely a matter of statutory interpretation. Speaking at the level of general constitutional principles, Kennedy viewed the Constitution as reaching the Guantánamo prisoners and insisted that there were sometimes circumstances—present in the case before him—“in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated.”31 He emphasized that the United States had exercised long-term, exclusive control over Guantánamo, and that the territory was far removed from any hostilities. He was also moved by the fact that the Guantánamo prisoners were being held indefinitely—not just for weeks or months, but for years—making the administration’s claims of military necessity and their objection to habeas weak. No other justice joined Kennedy’s opinion. Breyer, Souter, Ginsburg, and O’Connor silently joined Stevens’s statute-based opinion and acquiesced in his exercise in minimalism.
By June 2006, the time of Hamdan, the margins had drawn closer. John Roberts had replaced William Rehnquist as chief justice. Although Roberts did not participate in Hamdan, as a circuit judge Roberts had sustained the use of the military commissions.32 More to the point, Sandra Day O’Connor had retired and was replaced by Samuel Alito, who in the Hamdan decision sided with Justices Thomas and Scalia in defense of executive power and would have upheld Bush’s order. In Hamdan as in Rasul, Justice Kennedy wrote a separate opinion, but in this case his primary purpose was to explain why he believed that the Guantánamo military commissions were not authorized by Congress. Breyer, Souter, and Ginsburg were able to join this portion of Kennedy’s opinion, as well as Stevens’s opinion for the Court. (Like Souter and Ginsburg, Kennedy joined Breyer’s separate concurrence.)
To conceive of minimalism as a judicial strategy, now for a hypothetical individual justice, we must assume that at least one justice in the Hamdan majority was inclined to find that the Guantánamo commissions were objectionable from the perspective of due process and that the prisoners could use habeas corpus to vindicate their rights. Otherwise, there would be no choice, and thus minimalism could not be conceived of as a strategy of decision. There are hints in Rasul and Hamdan that this assumption is reasonable.
In the obscure footnote in Rasul that I have already mentioned, Justice Stevens referred not to Rehnquist’s opinion in the 1990 Mexican case but to Justice Kennedy’s, in which he argued that the Constitution imposes certain minimum obligations on U.S. officials wherever they act and against whomever they act. In Hamdan itself, Justice Stevens attacked the rule excluding the accused from trial on the ground that it represented a departure from, in the words of the Geneva Convention, “a judicial guarantee recognized as indispensable to civilized people”—a standard not very different from due process itself. He also expressed his hostility to the temptation of the executive to use military commissions as tribunals of convenience. Perhaps one of those who joined his opinions in both cases—Souter, Breyer, or Ginsburg—believed that trial before a military commission offended the Constitution and that the prisoners are entitled to habeas corpus to protect that right.
For our imagined justice, writing a separate opinion in Hamdan based on constitutional considerations would not have undermined the judgment itself, for, like the statute-based decision, it would have declared that the ban on habeas by the Guantánamo prisoners was invalid and that the use of military commissions was unlawful. Only the grounds of decision would be different. An artful justice might be able to affirm his or her allegiance to both the statutory and constitutional grounds of decision—for example, by arguing that at a minimum statutory authorization is required, but a statutorily endorsed scheme would offend due process. If that option is not available and the justice feels obliged to file a separate concurrence based only upon due process, Justice Stevens’s opinion might well be deprived of majority status. This would have disappointed Stevens, who was presumably anxious to speak for the Court, and thus would have strained collegial relations. Yet respectful disagreement, even to the point of depriving a colleague of the privilege of delivering a majority opinion, should never be taken as a personal offense. The duties of an officer of the Court are far too weighty.
Filing a separate concurrence might also introduce an element of uncertainty. The majority might be splintered. Some of the majority might have denied that the congressional ban on habeas applied to Hamdan’s petition. Others thought it was applicable but was unconstitutional. Some of the majority might object to trial by military commissions on statutory grounds; others might object on the basis of due process. Under these circumstances, neither the president nor Congress would know whether the illegality could be cured by enacting legislation. Such uncertainty should not, however, be necessarily viewed as a fatal vice.
For one thing, our imagined justice could count on the ingenuity of the political branches to move forward in the face of whatever uncertainty he or she might create. In the Hamdi case, for example, the Court was badly splintered, and it was unclear whether the evidentiary hearing to which the prisoner was entitled should be held before a military tribunal or a federal court. Faced with such uncertainty, the administration entered into an agreement that allowed the prisoner to move to Saudi Arabia, provided he agreed to certain restrictions and renounced his U.S. citizenship.
Alternatively, our imagined justice might be willing to subject the political branches to legal uncertainty in order to fully express deeply held beliefs. This second, more principled stance may well be justified, or at least rationalized, on the theory that his or her job is to safeguard the Constitution and the values it embodies, not to facilitate the choices of the elected branches. More pragmatically, this justice might act on the understanding that a bold, forceful, and—let’s hope—eloquent opinion articulating the underlying constitutional principles, even if joined by no other justice, would enrich the resources of the law. It would not be the law, but, as was the case with Justice Brandeis’s separate concurrence in Whitney v. California,33 it might enhance the law by introducing a new strain into the sources from which the law evolves.
A separate opinion by our imagined justice based on due process would also have made an immeasurable contribution to public discourse, including the debate occurring in the legislative chambers or the offices of the executive. It would have underscored the true stakes at issue. Had such an opinion been filed in Hamdan, politicians and the citizens they serve could have seen with far greater clarity that habeas corpus is a constitutional imperative and that Guantánamo military commissions are at variance not only with various statutes and maybe even international agreements, but—even more important—with the Constitution.
Prologue to Chapter 4
Trevor Sutton
“I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values.” So spoke Barack Obama in a closely followed speech on national security delivered at the National Archives in May 2009, nearly four months to the day after he succeeded George W. Bush as president of the United States. Much like his election campaign, Obama’s speech was presented as a direct repudiation of the counterterrorism policies of the Bush administration. After the September 11 attacks, Obama said, “we went off course,” and “made a series of hasty decisions” that had the effect of treating our enduring principles as “luxuries.” He added that this “ad hoc approach for fighting terrorism” was neither “effective nor sustainable”; in its place he promised an approach that drew on our “legal tradition” of “checks and balances,” the “rule of law,” and “due process.” The president explained that this return to c
ore values meant a firm rejection of torture and the closing of the prison at Guantánamo Bay.
Beyond these pronouncements, however, the president’s National Archives speech suggested something other than a clean break with the past. Obama said that he would seek civilian trials for alleged terrorists “whenever feasible”—hardly an unqualified commitment to principle—and noted that in some cases military commissions would be more appropriate. Even more troubling, he stated that there were a number of detainees at Guantánamo who could not be prosecuted because of “tainted” evidence, but who were still too dangerous to be released. Although the president insisted he would use “clear, defensible, and lawful standards” to justify prolonged detention, he did not hint at the content of those standards or the manner in which they would be applied.
To many, Owen Fiss included, the National Archives speech seemed less a clean break with the Bush era than a grudging prolongation of it. In this regard, this chapter, “Aberrations No More,” shared in the disappointment felt by many who had hoped that Obama’s election would usher in a restoration of constitutional values. Yet, unlike many of Obama’s critics, Fiss sought to look beyond the shortcomings of the current president to the complicity of the other branches of government, particularly the Supreme Court, which to a greater degree than either the executive or Congress has responsibility for balancing short-term exigencies with enduring values. In that sense, the essay, originally presented as a lecture at the University of Utah in October 2010, is a natural, if regrettable, sequel to “The Perils of Minimalism.” As “Aberrations No More” observes in acute detail, the Obama administration’s failure to fully turn the page on Bush-era counterterrorism policies undermines the case for minimalism even more forcefully than the Bush policies themselves did. Put otherwise, Obama’s record on national security offers a powerful example of how the heavy burden of protecting the country from attack can lead even the best-intentioned president to curtail civil liberties.
Looking back from the vantage point of Obama’s second term, “Aberrations No More” was prescient. Guantanámo remains open, and only a handful of prisoners (none of whom could be classified as senior-level terrorist operators) have been tried in civilian courts. Khalid Sheikh Mohammed, regarded as one of the masterminds of the September 11 attacks, was slated for trial in the Southern District of New York, but the Obama administration transferred his trial to a military commission after Congress voted to block the use of federal funds to transfer detainees to the United States. The use of torture appears to have stopped, and indefinite detention without trial exists only in a legacy capacity, but, as the final chapter in this volume makes clear, the government has expanded the use of targeted killings (including of American citizens) to a degree well beyond that practiced during the Bush administration. Finally, recent disclosures have revealed that under Obama the National Security Agency has engaged in wiretapping and monitoring of electronic communications on at least as large a scale as under Bush—although unlike Bush, Obama can claim a clear statutory basis and the occasional blessing of a special intelligence court composed of federal judges. These policies were available to the Obama administration only because the judiciary failed to offer a robust and enduring defense of fundamental liberties when it reviewed similar policies under President Bush.
Somewhat unsurprisingly, a number of former Bush administration officials have recently taken to claiming that Obama’s national security agenda vindicates the actions taken by his predecessor. One such official, former White House press secretary Ari Fleischer, went so far as to proclaim that Obama was “carrying out Bush’s fourth term.” Although such comments have an obvious political bias and fail to account for political constraints the Obama administration confronted after the 2010 midterm elections, they are not wholly without basis. Whether one sees Obama’s national security decisions as driven by conviction or by political expedience, the continuities with Bush’s War on Terror are plain.
Chapter 4
ABERRATIONS NO MORE
September 11, 2001, marked the beginning of a new era in American law. Combating terrorism became a matter of great public urgency, and as part of that endeavor, policies have been pursued that compromise once-sacred principles of the Constitution. These policies were initiated by President George W. Bush, but with some exceptions other branches of government soon endorsed them. Remarkably, they are now being continued by President Barack Obama.
Although terrorism did not begin on 9/11, the attacks on that day were distinguished by the magnitude of the death and destruction that they caused. Those attacks also had the threatening quality of a foreign invasion. Important sites in the United States—the World Trade Center and the Pentagon (and, if the terrorists had had their way, the Capitol or the White House)—were struck by foreign nationals acting on directions from abroad. Moreover, the events of 9/11 became a public spectacle. Scenes of airplanes crashing into the World Trade Center and the collapse of the towers were caught on video and frequently replayed in later years. The messages conveyed and the fears aroused by these images were further reinforced in the decade that followed by bombings in London, Madrid, Amman, Mumbai, and Bali; attempts to blow up two airplanes on their way to the United States; and the failed plot to detonate a car full of explosives in Times Square. As a result, starting on September 11, 2001, and continuing to this day, terrorism acquired an immediacy and reality for Americans that it never had before.
The government’s response to the attacks of 9/11—Bush’s announcement of a “War on Terror”—also endowed the events that occurred on that day with special significance. This declaration of war was intended to mobilize the American people, and it had that effect. It prioritized the need to respond to the risk of terrorism and prepared the public for the sacrifices that such a response would entail. In that respect, Bush was following the practice of earlier presidents who had declared a “War on Poverty,” a “War on Drugs,” and even a “War on Cancer,” but there was one important difference—Bush soon employed the military to achieve his objectives.
Bush’s War
In the fall of 2001, Bush determined that al-Qaeda, a far-flung organization that operates in secret, was responsible for the 9/11 attacks. He then began what can properly be regarded as a war against al-Qaeda. He unleashed the military force of the United States and charged it with the task of capturing or targeting Osama bin Laden and other leaders of al-Qaeda. At the same time, Bush ordered the invasion of Afghanistan, then controlled by the Taliban, on the theory that a symbiotic relationship existed between the Taliban and al-Qaeda. In March 2003, the president broadened the United States military operations in the Middle East and invaded Iraq, then controlled by Saddam Hussein and the Baath Party. Although the 9/11 terrorist attacks were not the basis of that military endeavor, terrorism, sometimes at the hands of al-Qaeda, was a consequence of the invasion of Iraq and the occupation that inevitably followed.
In his War on Terror, Bush instituted a number of practices that violated principles long viewed as hallmarks of our constitutional tradition. One such principle is the prohibition of torture. This prohibition is rooted not only in an international treaty and a federal statute implementing that treaty, but also in the Fifth and Eighth Amendments to the U.S. Constitution, part of the Bill of Rights. Soon after 9/11, however, the White House turned to lawyers within the executive branch for legal opinions that narrowed the definition of torture to allow the use of interrogation techniques such as waterboarding—to induce the fear of imminent death by drowning—that are almost universally condemned as torture.
During this same time, suspects were secretly sent to other countries, such as Syria and Egypt, that routinely torture their prisoners and subject them to abuses that would qualify as torture even under the Bush administration’s narrow definition. This practice, known as extraordinary rendition, and more properly seen as a form of outsourcing,1 is as much a violation of the rule against torture as when officials of the United States enga
ge in torture themselves.
Bush also instituted a detention policy that threatened another principle of our constitutional order—what I have called the principle of freedom. This principle prohibits the executive from incarcerating anyone without charging that individual with a crime and swiftly bringing him to trial. There are exceptions to this principle, including one for war. Under this exception, the executive is allowed to detain enemy combatants captured on the battlefield and to hold them for the duration of hostilities. Bush invoked this exception and then construed it in a way that threatened to undermine the very values that the principle of freedom seeks to protect.
Bush did not confine himself to imprisoning persons seized in Iraq, Afghanistan, or even the mountainous region between Afghanistan and Pakistan. Rather, he treated the entire world as if it were a battlefield, even to the point of seizing persons within the United States, including American citizens, and treating them as enemy combatants. Bush also refused to place any temporal limits on this policy of imprisonment without trial and was prepared to incarcerate persons for prolonged, indefinite periods of time—maybe for life. Although he said he would hold these individuals only until the end of the War on Terror or, more modestly, until the end of the war against al-Qaeda, the end of this war is not readily foreseeable. Extending the exception to the principle of freedom for wartime captures to a never-ending war of this sort threatens to undermine the principle itself.
All of the prisoners subject to Bush’s detention policy were held incommunicado, but sometimes a friend or relative, or even a volunteer lawyer, discovered a prisoner’s whereabouts and filed a petition of habeas corpus on his behalf. These petitions claimed that the prisoner was not in fact an enemy combatant, and thus there was no legal authority for the executive to detain him, even under the rule allowing wartime captures. Nevertheless, the Bush administration resisted any factual inquiry by the judiciary into the merits of these claims.