A War Like No Other

by Fiss, Owen

  These developments strike me as an encouraging turn of events, but there is still reason to object to the detention policy announced by Obama in his National Archives speech. The offense to the principle of freedom and the rule of law does not turn on the number of persons affected. Moreover, President Obama’s policy, even if embraced reluctantly and confined to a limited number of those imprisoned by the previous administration, will define what the government is allowed in the years ahead. It will lend a measure of legitimacy to Bush’s action and will have the inevitable effect of normalizing what should be seen as an offense to the Constitution.

  Another circumstance limiting the scope of Obama’s policy is the fact that all the prisoners at Guantánamo and Bagram are foreign nationals. Initially, it was unclear whether Obama believed that the policy could extend to American citizens. A brief filed around the time of the National Archives speech stated that the policy of imprisonment without trial was to apply to “persons,” with no distinction between American citizens and foreign nationals.30 In 2010, Obama seemed to honor the principle of freedom in his treatment of Faisal Shahzad, a naturalized American citizen. Shahzad was arrested by civilian law enforcement officials, swiftly charged, and then brought to trial in federal court for attempting to detonate a bomb in Times Square.31 Yet that case did not necessarily indicate that Obama opposed imprisoning any American without trial. After all, his treatment of Shahzad was no different from that afforded to the Nigerian national Umar Farouk Abdulmutallab. However, at the end of 2011, more than two years after his National Archives speech, Obama went out of his way to draw a distinction between American citizens and foreign nationals. “I want to clarify,” he declared, “that my Administration will not authorize the indefinite military detention without trial of American citizens.”32

  In this declaration, Obama broke from Bush. President Bush was prepared to treat all al-Qaeda and Taliban fighters, including American citizens, as unlawful enemy combatants who could be imprisoned indefinitely without trial. This was evident in the cases of John Walker Lindh and Jose Padilla. It was also evident in the case of Ali Saleh Kahlah al-Marri, a citizen of Qatar who had lawfully been admitted to the United States for educational purposes. Al-Marri was taken into custody while enrolled as a student at Butler University in Peoria, Illinois, and, on the basis of alleged al-Qaeda links, was imprisoned as an unlawful enemy combatant in a naval brig in South Carolina for six years. As in the case of Jose Padilla, the government eventually changed its strategy. While a petition for certiorari was pending before the Court, and for the obvious purpose of mooting Supreme Court review of its detention policy, the government charged al-Marri with a specific crime, to which he later pleaded guilty.33

  The imprisonment of any American citizen brings into play the Non-Detention Act of 1971, which provides that no American citizen can be detained without authorization of Congress.34 This statute was enacted as a belated repudiation of the internment of citizens of Japanese ancestry during World War II. The 1971 measure might be seen as a watered-down version of the principle of freedom—watered-down because it applies only to citizens; requires a grant of authority from Congress, not a trial; and seeks to protect the authority of Congress rather than personal liberty.

  The force of the Non-Detention Act was further reduced by the Supreme Court’s decision in Hamdi v. Rumsfeld in 2004.35 In an opinion by Justice Sandra Day O’Connor, four justices ruled that the statutory authorization required by the 1971 act could be found in the AUMF—the statute passed immediately after 9/11 that authorized the use of force to respond to the terrorist attack on that day and that functioned as the declaration of war against Afghanistan. The Court did not rule on the government’s further contention that even if the AUMF did not satisfy the requirement of the 1971 Non-Detention Act, the 1971 act did not provide any protection for American citizens who had been captured in an active theater of war.

  In truth, the primary protection for the personal liberty of American citizens is not the 1971 Non-Detention Act or any other statute, but rather the principle of freedom as embodied in the Constitution. This principle’s protections are not confined to American citizens; they apply to citizens and noncitizens alike. The primary textual source of the principle is the Due Process Clause, which by its very terms protects the liberty of “any person,” and this provision should be seen as limiting the authority of United States officials wherever they act and against whomever they act.

  As a general matter, the Due Process Clause and perhaps the Bill of Rights as a whole should not be read as a testamentary document distributing property or benefits (individual rights) to privileged classes of persons (American citizens) but as promulgating general norms defining the authority of U.S. officials. Although foreign nationals may not be part of the political community—the “We the People” that endows the Constitution with democratic legitimacy—the Constitution represents the political community’s definition of the standards of conduct that it expects of its officials wherever they act and against whomever they act. Accordingly, even though Obama’s policy of imprisonment without trial appears to be confined to persons who are not American citizens or those not lawfully admitted to the United States, as is true of the persons still incarcerated in Guantánamo or Bagram, it would, I contend, violate the Constitution and be as clear a breach of the rule of law as was Bush’s.

  At the time of Obama’s National Archives speech, the Supreme Court had already handed down its decision in Boumediene v. Bush. The Court concluded in that case that the statute banning the writ of habeas corpus for persons determined by the executive to be unlawful enemy combatants was unconstitutional. Justice Anthony Kennedy spoke for the Court, and in doing so he carefully avoided any broad pronouncements on the rights possessed by foreign nationals. He ruled that the Guantánamo prisoners were entitled to the protection of the provision of the Constitution limiting the powers of Congress to suspend the writ of habeas corpus but saw that provision as serving separation of powers and announced a multivariate test to determine its applicability. As he said, “[W]e conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”36 The application of this test will vary from case to case; in fact, the Court of Appeals for the District of Columbia decided that under the Boumediene test the Suspension Clause did not reach prisoners at Bagram Airfield, a U.S. military base in Afghanistan, largely because the base was located in a theater of armed conflict.37 But from the very terms of the test itself and its initial application, it is clear that the benefit of the Suspension Clause is not confined to United States citizens or even foreign nationals who are incarcerated within the sovereign territory of the United States.

  Boumediene recognized that the essential function of the writ is to guard against arbitrary action by the executive. In the specific context of that case, the action in question was the detention of persons who denied that they had ever taken up arms against the United States. Boumediene does not preclude, however, and the principle of freedom requires, that the writ be available to guard against another form of arbitrary action by the executive: the failure to place on trial individuals who have been accused of terrorism and who have been incarcerated for prolonged periods of time—in some cases, for more than a decade. A habeas proceeding authorized by Boumediene may find the prisoner seeking the writ to have fought for al-Qaeda and thus properly classified as an unprivileged enemy combatant but then go on to decide that under the principle of freedom the continued detention of this individual can be authorized only if he is tried and convicted of some specific crime. The constitutional right to freedom must, of course, accommodate claims of military necessity, but never in a way that relieves the judiciary of
its duty to scrutinize these claims with care and to limit the sacrifice of freedom to the smallest possible domain.

  Prologue to Chapter 7

  Trevor Sutton

  The idea that torture has no place in a civilized society emerged in the Enlightenment and is as old as the American Republic itself. The framers’ ban on “Cruel and Unusual Punishments,” enshrined in the Eighth Amendment, was not an abstract concern: European monarchies routinely and openly prescribed torture-based punishments into the eighteenth century. Even after torture came to be regarded as a barbaric practice in the West, some governments—Imperial Russia in particular—continued to torture dissidents, radicals, and terrorists behind closed doors.

  Although the United States never reached the depravity of the tsars, it is a sad truth that during the eighteenth and nineteenth centuries federal and state officials engaged in practices that today seem self-evidently cruel and unusual. These practices did not take the form of criminal sanctions, where the text of the Eighth Amendment was clearly prohibitive, but rather occurred in the context of police interrogation. This was especially the case in the South during the antebellum and Jim Crow eras, where violence was an essential element of racial oppression. Of course, in the cities of the North, too, use of the “third degree” against criminal suspects was routine for much of American history.

  Over the course of the twentieth century, the systemic use of pain-based interrogation techniques in the United States ebbed considerably. Today, there exist statutory prohibitions on torture at both the state and federal levels, and at the level of international law the United States has ratified the United Nations Convention against Torture. Many actors contributed to this decline in officially sanctioned brutality, including civil rights activists, elected officials, the press, and public commissions of inquiry—most famously the Wickersham Commission created by President Herbert Hoover. Nevertheless, the role of the courts in ending torture was essential. Of key importance is the celebrated 1936 case Brown v. Mississippi, in which the Supreme Court unanimously found that a confession extracted through police violence—specifically, flogging—could not serve as evidence of guilt, and that a conviction on such grounds violated the Due Process Clause of the Fourteenth Amendment. Another important development was the 1952 case Rochin v. California, in which the Court overturned the conviction of a defendant who had been forced to vomit up narcotics against his will, on the reasoning that such conduct “shocks the conscience.”

  That the federal judiciary played an important role in limiting the use of torture by state agents is not surprising: many of the scenarios under which official torture commonly arises relate to areas of governance traditionally subject to judicial oversight, such as police interrogation and criminal punishment. But the kind of executive action examined in this chapter, “Torture and Extraordinary Rendition,” does not fall within these comfortable bounds. Rather, the essay discusses torture carried out by U.S. officials outside U.S. territory, or by foreign governments on behalf of the United States, to collect intelligence about foreign extremist organizations suspected of plotting terrorist attacks.

  Although the parallels between official torture in the counterterrorism context and its use in purely domestic contexts seem obvious, the judiciary has been reluctant to extend the prohibition of torture into the realm of national security. This wariness, documented in “Torture and Extraordinary Rendition,” is lamentable but not wholly unexpected. From as early as the Insular Cases, the federal courts have approached extraterritorial application of the Constitution with caution. But with respect to victims of torture committed outside the United States, the judiciary has avoided reaching even this question of extraterritorial reach, and has instead ruled against the victims on the basis of discretionary doctrines of abstention—specifically, an extension of the state secrets privilege, and a novel reading of the “special factors” exception to the availability of damages under a Bivens action. As the essay observes, both of these bases for dismissal are framed so broadly that they could easily “degenerate into a free-floating political question doctrine” barring review of any suit that touches on the political branches’ foreign affairs and war powers.

  This refusal on the part of the judiciary to adjudicate questions of fundamental rights through self-imposed procedural obstacles bears a striking resemblance to an earlier concern of Owen Fiss: the Burger and Rehnquist Courts’ paring back of the structural injunction, and with it the role of the federal courts in redressing civil rights violations, through judicially created rules of abstention. The Supreme Court’s retrenchment on injunctive relief in the final decades of the twentieth century was presented as exercises in humility and comity, but its effect was hardly modest: it served to marginalize the role of the judiciary in one of its areas of core competence. The same critique can be leveled at the judicial hand washing discussed in “Torture and Extraordinary Rendition.” In Fiss’s view, torture, like racial segregation, is too grave an offense to constitutional values to entrust its prohibition to the political branches.

  On December 9, 2014, the nation was delivered a chilling reminder of the consequences of unquestioning deference to the executive’s national security policies. On that day, the Senate Select Committee on Intelligence publicly released a formerly classified report on the CIA’s interrogation and detention program under the Bush administration. The report described the deliberate and systematic use of physical and mental torture against suspected terrorists in U.S. custody, including waterboarding, prolonged placement in painful “stress positions,” and a practice known as “rectal feeding,” in which liquids are pumped into an individual’s large intestine via a tube inserted into the rectum. The Senate report was greeted with widespread outrage and may well lead to a tightening of the legislative and policy regimes prohibiting torture. But as Fiss makes clear in his essay, even robust oversight by Congress is no substitute for open and public trials and an independent, assertive judiciary willing to protect fundamental rights even in times of exigency. Whether the executive and Supreme Court will permit the judiciary to play such a vital role is, lamentably, very much an open question.

  Chapter 7

  TORTURE AND EXTRAORDINARY RENDITION

  In this essay, I focus on one of the most egregious of all abuses associated with the War on Terror—the policies and practices that put into doubt America’s commitment to prohibiting torture. The ban on torture is embodied in a number of international instruments, most notably the 1984 Convention against Torture,1 signed by the United States in 1988, and also in the criminal statutes enacted to implement that treaty.2 Yet it is important to understand, so that we can be clear about the magnitude of the wrong, that the rule against torture did not await the arrival of the 1984 convention and its implementing statutes; it is rooted in the Constitution itself.3

  The Eighth Amendment prohibits cruel and unusual punishments, and torture would surely meet the standard of cruel and unusual. Although some may claim that torture inflicted for the purpose of extracting information from a person held in custody might not be deemed a “punishment” and thus is beyond the scope of the Eighth Amendment, I insist that such conduct is prohibited by an implicit premise of the Eighth Amendment. Certainly, if we cannot torture someone who has been judged to have broken the law, we cannot torture someone who we only suspect has broken the law or who we believe is in possession of information that might enable us to prevent or punish unlawful acts. Immanent in the Eighth Amendment is a principle—let us call it the dignity principle—that denies state officers the power to treat inhumanely anyone in their custody.

  A similar regard for human dignity can be found in the Fifth Amendment. In the broadest of terms, that amendment denies the state the authority to deprive any person of “life, liberty, or property without due process of law.” This norm has been construed to prohibit not just unfair procedures but any state action that shocks the conscience or offends an elemental regard for the humanity of persons in stat
e custody. The phrase “shocks the conscience” was used by the Supreme Court to denounce police action that consisted of pumping the stomach of a suspect.4 The substantive dimensions of due process have also been manifest in decisions striking down laws that denied parents the right to send their children to private schools5 and, more recently, that denied consenting adults the right to engage in intimate sexual conduct.6

  As an expression of the dignity principle, the constitutional ban on torture of the Fifth and Eighth Amendments is an absolute. It focuses on the intrinsic quality of the state practice—its sheer inhumanity—and does not vary according to the putative value of the information sought. The constitutional ban on torture cannot be overridden or relaxed because the interrogator believes he might be able to extract information that will save an innocent life or, for that matter, countless lives. The harm to our cherished values would be far greater than the benefit that might possibly be obtained. At issue is nothing less than the ideals that define us as a nation.

  Bush on Torture

  President George W. Bush declared that he was opposed to torture, yet he governed in a way that put his underlying commitment in doubt. He declared his opposition to torture in 2004,7 almost three years after he announced the War on Terror, in September 2001, and did so in a most defensive manner—in response to a public outcry, initially provoked by the publication of the Abu Ghraib photographs and then compounded by the leak of internal memoranda of the Department of Justice and the Department of Defense that took the proverbial “gloves off” government interrogators.8