United States: The Bush administration s war on terrorism in the Supreme Court

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1 128 DEVELOPMENTS United States: The Bush administration s war on terrorism in the Supreme Court David Golove* The U.S. Supreme Court has now rendered its much-awaited decisions in a trilogy of cases subjecting the Bush administration s so-called war on terrorism to the scrutiny of the judiciary. Rejecting many of the administration s key legal contentions in the cases, the decisions represent a serious setback for the president and a reaffirmation that the rule of law cannot simply be ignored in the face of the terrorist threat. The tenor of the Court s response was nicely captured in Justice O Connor s quip: We have long since made clear that a state of war is not a blank check for the President. 1 The decisions should be viewed through a dual lens. From the perspective of those concerned about the fair treatment of the Bush administration s detainees in the war on terrorism, the cases constitute only a modest step forward. From a wider systemic perspective, however, they have a more far reaching significance, representing a sustained judicial effort to counter the radical vision of constitutional law that the administration has methodically developed since the September 11 attacks. I. The cases The three cases before the Court Rasul v. Bush, 2 Hamdi v. Rumsfeld, 3 and Rumsfeld v. Padilla 4 are all habeas corpus petitions challenging the legality of the detention of individuals determined by the Bush administration to be enemy combatants in the war on terrorism. Despite this basic commonality, however, the cases raise somewhat different questions and came to the Court in different procedural postures. Perhaps the most closely watched case internationally was Rasul. In that case, the petitioners were all non-u.s. nationals who were among the more than six hundred detainees captured in Afghanistan and sent by the U.S. military to the U.S. naval base in Guantánamo Bay, Cuba. By the time of the Court s decision, and despite intense international criticism, the administration had held most of these detainees incommunicado for well over two years, subjecting them to harsh conditions and intense long term interrogation and denying * Professor of law, New York University School of Law. Special thanks to Stephen Holmes and Rick Pildes for extended discussions about the issues discussed in this article. 1 Hamdi v. Rumsfeld, 542 U.S. 124 S.Ct. 2633, 2650 (2004) U.S. ; 124 S. Ct (2004) U.S. ;124 S.Ct (2004) U.S. ; 124 S.Ct (2004).

2 DEVELOPMENTS 129 them recourse to any judicial process to challenge their status. It claimed the right to hold them indefinitely, until the end of the war on terrorism, however long that might last; refused to recognize the applicability of the Geneva Conventions to some of them; and, as to the rest, denied that they were entitled to prisoner of war status, leaving them with only the most minimal protections (in the administration s view) under the laws of war. 5 The sole question before the Court was whether U.S. courts have jurisdiction even to consider the merits of their habeas petitions. According to the administration, U.S. courts have no jurisdiction over petitions brought by aliens held in territory, like Guantánamo, that is not subject to the de jure sovereignty of the United States. 6 Thus, the Supreme Court was asked to rule not upon the nature of the rights which the president must accord to the Guantánamo detainees under U.S. or international law, but only upon whether U.S. courts have power even to consider their cases. The Hamdi case was factually quite similar to Rasul, but procedurally one step further advanced. Like the petitioners in Rasul, Hamdi too was captured in Afghanistan and then sent to Guantanamo. However, when the military learned that he was born in the United States, and was thus presumptively a U.S. citizen, it transferred him to a naval brig in the United States where it continued both to hold him incommunicado and to subject him to long term interrogation. Because of his status as a U.S. citizen, the administration conceded that the U.S. courts do have jurisdiction to hear his habeas petition. The preliminary jurisdictional question at issue in Rasul, therefore, did not arise, and the Court could turn immediately to the merits of the case. According to the administration, however, access to the writ was the only privilege that Hamdi s status as a U.S. citizen afforded him. The president, it claimed, has both statutory and constitutional authority to detain enemy combatants, whether they are non-u.s. nationals or U.S. citizens, and the 5 See Memorandum of President George Bush, Humane Treatment of Taliban and al Qaeda Detainees, (Feb. 7, 2002), available at documents/020702bush.pdf (last visited September 24, 2004) (hereinafter Feb. 7 Bush Memo) (finding that the Geneva Conventions do not apply to members of Al Qaeda and that Taliban militia members are entitled neither to prisoner of war status under the Third Geneva Convention nor to the basic protections of so-called Common Article III); U.S. Department of Justice, Office of Legal Counsel, Memorandum for William J. Haynes, II, General Counsel, Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 9, 2002), available at (last visited September 24, 2004) (hereinafter Jan. 9 Torture Memo); Department of Defense, Order: Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base, Cuba (May 11, 2004) (hereinafter Guantanamo Review Procedures). 6 Following the administration s lead, the lower court had so held. See Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003). In a related case, another lower court reached the opposite conclusion. See Gherebi v. Bush, 352 F.3d 1278 (9 th Cir. 2003).

3 130 DEVELOPMENTS courts are obliged to defer to the military s judgment about an alleged enemy combatant s status. Due process was satisfied, in the administration s view, because Hamdi could always make explanations to his military interrogators. In any event, at most, the administration claimed, the government could be required to submit some evidence, whether admissible or not under ordinary evidentiary rules, which the courts would have to accept as true and which Hamdi could not attempt to rebut. As a result, he neither had a right, nor any need, to have access to an attorney. 7 The case thus presented two main issues: Does the president have authority to detain a U.S. citizen as an enemy combatant, and, if so, what due process protections must be accorded to a citizen to ensure that his designation as an enemy combatant is not in error. The last case, Rumsfeld v. Padilla, raised the most critical questions from a domestic constitutional perspective. Like Hamdi, Padilla is a U.S. citizen, but in contrast to Hamdi, who was allegedly captured carrying a weapon on a foreign battlefield, he was arrested unarmed, by FBI agents in Chicago s O Hare airport. Also in contrast to Hamdi, who was allegedly a combatant in something close to a traditional interstate war in Afghanistan, Padilla had no involvement whatsoever in the Afghan conflict or in the September 11 attacks. Rather, the administration asserted that he was associated with Al Qaeda and that he entered the United States with the intention of carrying out terrorist attacks on U.S. territory. During the more than two years before the Court rendered its decision, moreover, the government held Padilla, like so many of its other detainees, incommunicado and subjected him, without judicial process, to long term interrogation in a naval brig in South Carolina. In the administration s view, the factual differences between Hamdi and Padilla have no bearing on the scope of the president s powers. The president has both statutory and constitutional authority to detain suspected enemy combatants whether they are captured on foreign or U.S. territory, whether they are non- U.S. nationals or U.S. citizens, or whether they are combatants in a traditional interstate war or are suspected international terrorists. As in Hamdi, moreover, a U.S. court must defer to the president s determination that any such individual is in fact an enemy combatant, or, at most, may require the government to submit some evidence to support its claim. In so arguing, the Bush administration sought confirmation of a breathtakingly broad conception of executive powers, coming vanishingly close to a claim of presidential authority to detain U.S. citizens arrested in the United States indefinitely and to hold them incommunicado for purposes of interrogation, without access to counsel or judicial process, on mere suspicion. 8 7 The lower court had upheld the administration s position on virtually every point. See Hamdi v. Rumsfeld, 316 F.3d 450 (4 th Cir.), rehearing and rehearing en banc den., 337 F.3d 335 (2003). 8 The lower court rejected the administration s position, holding that the president was not authorized to detain Padilla. See Padilla v. Rumsfeld, 352 F.3d 695 (2d. Cir. 2003).

4 DEVELOPMENTS The Court s analysis With this background in mind, we can now consider the Court s resolution of each of the cases Rasul v. Bush By a 6 to 3 majority, the Court in Rasul decisively rejected the government s claim that U.S. courts have no jurisdiction over habeas corpus petitions brought by aliens in U.S. custody in Guantánamo Bay. Yet, the Court s opinion is a study in judicial minimalism and indirection. As Justice Scalia rightly pointed out in dissent, the Court avoided addressing any of the larger policy issues posed by the case, including even the government s main contention that the exercise of jurisdiction would undermine the military s ability to fight the war on terrorism. 9 Instead, it offered a highly technical statutory argument as the principal basis for its approach and, in the process, left a number of core questions open or ambiguously resolved. Nevertheless, a close reading of the opinion reveals its potentially far reaching implications. The government s argument rested almost entirely upon a World War II era case, Johnson v. Eisentrager. 10 In Eisentrager, the petitioners were German nationals imprisoned in a U.S. military prison in Germany who were convicted of war crimes by a U.S. military tribunal in China. The Eisentrager Court held that U.S. courts have no jurisdiction over habeas petitions filed by enemy aliens who are captured, detained, tried, convicted, and imprisoned outside of the United States for war crimes committed abroad. In reaching this result, the Court relied upon the traditional common law rule, inherited from the British, that alien enemies in time of war are not entitled to bring suit in U.S. courts. 11 In the administration s view, Eisentrager controlled the outcome in Rasul. Although the Rasul petitioners were not convicted war criminals, they were aliens held in military custody outside the United States for acts committed abroad, and that was sufficient to require application of Eisentrager s jurisdictional rule. The Court in Rasul opted not to confront Eisentrager directly. It might have emphasized the tension between the underlying philosophical foundations of the decision and of the subsequent expansion of domestic constitutional rights and the development of international human rights law. Instead, it only briefly referred to the historical role of the writ in upholding liberty against executive overreaching and then quickly turned to a more complicated statutory and precedent based argument Rasul, supra note 2, Slip Op. at 10 13; 124 S.Ct. 2701, (Scalia, J., dissenting) U.S. 763 (1950). 11 See Eisentrager, supra note 10, at See Rasul, supra note 2, Slip Op. at 5 6; 124 S.Ct. at

5 132 DEVELOPMENTS According to the Court, the German petitioners in Eisentrager had two arguments in favor of the jurisdiction of the federal courts. The first was statutory and was based on the general habeas statute, 28 U.S.C. 2241, which provides: Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. 13 The second was constitutional. In the absence of a congressional suspension of habeas corpus, the petitioners argued, they were constitutionally entitled to access to the writ. The Eisentrager Court, however, focused only on the constitutional argument, because it had effectively rejected the statutory argument in a decision rendered only a short time before in Ahrens v. Clark. 14 In Ahrens, the Court held that the last clause of 2241 within their respective jurisdictions means that a federal court can only exercise jurisdiction over a habeas petitioner who is physically confined within the territorial jurisdiction of the court. Ahrens involved habeas petitions filed in the District of Columbia by petitioners detained in New York, but the implication of its interpretation of the statutory language was that U.S. courts are entirely without jurisdiction over petitions brought by persons detained outside the United States. 15 As a result, the Eisentrager Court had little choice but to find that 2241 did not provide for jurisdiction over the German petitioners being held in Landsberg Prison, Germany, a place outside the territorial jurisdiction of any U.S. court. 16 Ahrens, the however, is not the end of the story. According to the Court in Rasul, its subsequent 1973 decision in Braden v. 30 th Judicial Circuit Court of Kentucky, 17 in turn, overruled Ahrens. Contrary to Ahrens, the Braden Court held that the crucial language from 2241 within their respective jurisdictions means only that the federal court must have personal jurisdiction over the petitioner s custodian. So long as the custodian can be reached by service of process, the court has jurisdiction, irrespective of whether the petitioner is confined inside or outside of its territorial jurisdiction. 18 Braden therefore undermined the statutory predicate on which Eisentrager had relied for its ruling denying 2241 statutory jurisdiction. Since there was no dispute in Rasul that the custodians of the Guantánamo detainees could be reached by service of process, 2241 provided jurisdiction, Eisentrager notwithstanding U.S.C (2003). 14 The decision was Ahrens v. Clark, 335 U.S. 188 (1948). See Rasul, supra note 2, Slip Op. at 8 9; 124 S.Ct. at U.S. 484 (1973). 16 See Rasul, supra note 2, Slip Op. at 8 10; 124 S.Ct. at See id., Slip Op. at 10; 124 S.Ct. at See id., Slip Op. at 11, 15; 124 S.Ct. at 2695, Justice Scalia, in dissent, repeatedly characterized the Court s holding in this way. See Rasul, supra note 2, Slip Op. at 1, 11 12, 13 (Scalia, J., dissenting); 124 S.Ct. at 2701,

6 DEVELOPMENTS 133 The Court thus found an elegant, if somewhat convoluted, technical argument for dispensing with Eisentrager. Moreover, by apparently eliminating any territorial limit on the scope of the writ, its reading of the statutory language potentially supports a sweeping approach to the scope of habeas jurisdiction, extending the writ to any person held in executive custody anywhere in the world. It seems unlikely, however, that this is actually what the Court intended. It repeatedly emphasized that Guantánamo is a territory which, by treaty, is subject to the complete jurisdiction and control of the United States, though not to its ultimate sovereignty. 20 Moreover, it characterized the British habeas practice as extending the writ based on the practical question of the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown. 21 It seems likely, therefore, that the Court intended to restrict the scope of its ruling to territories over which the United States has a considerable, though not clearly defined, degree of jurisdiction and control. The Court said little in explanation of this standard. Besides its interpretation of British practice, the Court also invoked the traditional presumption against the extraterritorial application of domestic legislation. Noting that the United States exercises complete jurisdiction and control over Guantánamo and may continue to so permanently if it so chooses, it concluded that the presumption has no application to the exercise of habeas jurisdiction over the Guantanamo detainees. 22 Although it did not say so explicitly, it might have meant to imply, conversely, that the presumption would apply to a territory over which the United States exercises no such control, thus providing a basis for its jurisdiction and control standard. Unfortunately, however, the Court s analysis is flawed. It appears to confuse two different types of extraterritoriality extraterritorial jurisdiction to prescribe and extraterritorial jurisdiction to adjudicate. The only question at issue in Rasul was whether the federal courts have jurisdiction to adjudicate, and since the jurisdiction invoked by the petitioners was over U.S. officials located in the United States, Rasul is simply not a case involving an assertion of extraterritorial jurisdiction to adjudicate. 23 Although the Court thus failed to offer a persuasive explanation for adopting the jurisdiction and control standard, its general approach may perhaps be 20 Rasul, supra note 2, Slip Op. at 3; 124 S.Ct. at 2691, quoting Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, Art. III, T. S. No See id. at 6, 8, 12; 124 S.Ct. at 2693, Rasul, supra note 2, Slip Op. at 14; 124 S.Ct. at 2697, quoting Ex parte Mwenya, [1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.). For the Court s discussion of the British precedents, see id. at & n. 14; 124 S.Ct. at & n See id. at 12 13; 124 S.Ct. at Justice Scalia refers obliquely to the Court s confusion. See Rasul, supra note 2, Slip Op. at 13; 124 S.Ct. at (Scalia, J., dissenting).

7 134 DEVELOPMENTS defended on international comity grounds. The jurisdiction and control test shows respect to foreign nations and their courts by deferring to the latter when they are available to adjudicate a local dispute but allows U.S. courts to exercise jurisdiction when U.S. extraterritorial rights oust the local courts from exercising their normal jurisdiction. In cases where the United States does not exercise jurisdiction and control over another state s sovereign territory, the local courts can exercise their ordinary jurisdiction and afford detainees whatever remedies local law prescribes in cases of unlawful detention. Therefore, out of deference to a foreign legal system, U.S. courts should stay their hands. In contrast, in cases where the United States, whether by agreement or otherwise, exercises such a degree of jurisdiction and control that the local courts are precluded from exercising their ordinary jurisdiction, the U.S. courts can, and indeed should, assert jurisdiction. Otherwise, they leave detainees without any forum in which to seek relief. There are, moreover, two additional concerns that may lie behind the Court s approach. The first is suggested by its discussion, however technically flawed, of extraterritorial jurisdiction. What may have prompted the Court to discuss extraterritoriality is a recognition that separating the jurisdictional issue from the merits is artificial and that a key question on the merits will necessarily be the extent to which U.S. law, especially the Constitution, applies extraterritorially to actions of executive officials outside U.S. sovereign territory. If U.S. law does not apply to Guantanamo, then a ruling in favor of jurisdiction would have little meaning: The U.S. courts would technically have jurisdiction, but it would only be jurisdiction to dismiss for lack of any substantive law to apply. 24 Thus, by adopting the jurisdiction and control test, the Court may have been seeking to harmonize its standard for the exercise of habeas jurisdiction with its approach to the extraterritoriality of substantive U.S. law: The writ extends to the same territories to which U.S. substantive law, including the Constitution, extends, to wit, territories over which the United States has jurisdiction and control even though not de jure sovereignty. 25 This reading is supported, moreover, by an extraordinary footnote which appears near the end of the Court s opinion. Moving beyond the jurisdictional question before it, the Court affirmed that the detainees allegations that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of 24 To be sure, even if U.S. law did not apply to Guantánamo, the U.S. courts could still apply treaty law, including the Geneva Conventions. However, the administration argues on other grounds that the courts are without power to give effect to any relevant treaty obligations. See Rasul v. Bush, Brief for The Respondents at 38 9 (Mar. 2004) (hereinafter administration s Rasul Brief). 25 Justice Scalia s sharp response to the Court s extraterritoriality analysis may reflect his recognition of the importance the issue will have on remand. See Rasul, supra note 2, Slip Op. at 12, 14; 124 S.Ct. at 2706, (Scalia, J., dissenting).

8 DEVELOPMENTS 135 the United States, without access to counsel and without being charged with any wrongdoing unquestionably describe custody in violation of the Constitution or laws or treaties of the United States. 26 This ruling represents a severe rebuke to the administration, which has long maintained not only that the courts have no jurisdiction over detainees held outside U.S. sovereign territory but also that the U.S. Constitution does not extend its protections to executive activities in such offshore territories. 27 Rasul thus suggests, albeit in a footnote, that the administration s larger theory of constitutional law and the war on terrorism is radically unsound. A second, and related, consideration possibly motivating the Court s jurisdiction and control test may have been its desire to avoid the prospective application of the traditional common law rule, affirmed in Eisentrager, that denies non-resident enemy aliens access to U.S. courts. The Court never directly addressed the status of the traditional rule in light of its broad reading of However, even if there were no territorial limitations upon the scope of the writ, that would not necessarily mean that the courts have jurisdiction in all cases. The traditional rule suggests that even so, a petitioner will be precluded from access to the courts if he is a non-resident enemy alien. The Court s jurisdiction and control test, arguably, is designed to avoid just this result in territories qualifying under the Court s standard. It can be read to assimilate territory over which the United States exercises a sufficient quantum of jurisdiction and control to de jure U.S. sovereign territory and thereby to render even enemy aliens detained there resident enemy aliens for jurisdictional purposes. This is particularly significant because at the time Rasul was decided, it was well known that the Bush administration was planning to conduct war crimes trials in Guantánamo. 28 The Court may well have been sending a signal that, contrary to Eisentrager, it intends to permit the courts to exercise habeas jurisdiction over challenges by convicted detainees to the legality of their trials. Thus, even if the detainees are adjudged by military tribunals to be actual enemies, as was the case in Eisentrager, the courts will still retain jurisdiction, the traditional rule notwithstanding. 29 In any case, the Court offered little guidance about how to apply the jurisdiction and control test. It did not need to in order to resolve the case before it 26 Rasul, supra note 2, Slip Op. at 15 n.15; 124 S.Ct. at 2698 n. 15, quoting 28 U. S. C. 2241(c)(3). 27 See administration s Rasul Brief, supra note 24, at 19 20; U.S. Department of Justice, Office of Legal Counsel, Memorandum for William J. Haynes, II, General Counsel, Department of Defense, Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba (December 28, 2001), available at (last visited September 24, 2004). 28 See Neil A. Lewis, Military s Lawyers For Detainees Put Tribunals on Trial, N.Y. TIMES, May 4, 2004, at Sec. A, pg. 1; Neil A. Lewis, U.S. Charges Two at Guantanamo with Conspiracy, N.Y. TIMES, Feb. 25, 2004, at Sec. A, pg. 1. Indeed, those proceedings, such as they are, have begun. See Neil A. Lewis, First War-Crimes Case Opens at Guantanamo Base, N.Y. TIMES, Aug. 25, 2004, at Sec.A, pg In In re Quirin, 317 U.S. 1 (1942), the Court exercised jurisdiction over the petitions of enemy alien soldiers who, having been taken into custody in the United States intending to commit acts

9 136 DEVELOPMENTS because Guantánamo easily qualifies: The United States exercises exclusive jurisdiction and complete control over the naval base, has done so for a century, and may continue to do so, at its option, in perpetuity. 30 Of course, a great deal turns on how liberally the Court ultimately applies its new standard. The administration has developed a global system of secret detention facilities scattered throughout the world where it is holding many terrorist suspects. Shrouded in secrecy, this system operates under a regime of unchecked executive discretion. 31 Will the Court s ruling apply to these detainees as well, even though the extent of U.S. jurisdiction and control over the facilities where they are held may be somewhat less complete or permanent at least as a de jure matter? What about detainees held in detention facilities located in occupied territory, as in Iraq, or in a zone of active military combat? The Court s opinion does not offer any obvious answers Hamdi v. Rumsfeld The various opinions in Hamdi are, by comparison, far more candid than the Court s opinion in Rasul. The Court was too fractured to manufacture a majority opinion, but eight of the justices agreed that the executive branch had seriously overreached in its treatment of Hamdi. Only one would have upheld the president. 32 A plurality of four found that the president does have the authority to detain Hamdi as an enemy combatant but insisted, contrary to the Bush administration, that Due Process entitles him to notice and a hearing before a neutral decision maker as well as a right to marshal evidence to rebut the government s evidence against him. 33 Four justices believed that the president has no authority to detain a U.S. citizen as an enemy combatant, either because of a lack of statutory authority 34 or because constitutionally prohibited. 35 Given this voting configuration, the plurality s opinion is the controlling opinion in the case. of sabotage, were being held and tried by military commission in Washington D.C. For further discussion of Quirin, see infra note and accompanying text. 30 See Rasul, supra note 2, Slip Op. at 12; 124 S.Ct. at See David Johnston, Uncertainty About Interrogation Rules Seen as Slowing the Hunt for Information on Terrorists, N.Y. TIMES, June 28, 2004, at Sec. A, pg. 8; Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations: Stress and Duress Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities, WASH. POST. Dec. 26, 2002, at A1; Human Rights First, Ending Secret Detentions (June 2004), available at Detentions_web.pdf (last visited September 24, 2004). 32 See Hamdi, supra note 3, Slip Op. at 1; 124 S.Ct. at 2674 (Thomas, J., dissenting). 33 See id. SlipOp. at 1; 124 S.Ct. at 2635 (O Connor, J., opinion announcing judgment of the Court). 34 See id., Slip Op. at 1; 124 S.Ct. at 2652 (Souter, J., concurring in part, dissenting in part, and concurring in the judgment). 35 See id., Slip Op. at 1; 124 S.Ct (Scalia, J., dissenting).

10 DEVELOPMENTS 137 Much of the argument in the case focused on two questions. First, does the president have independent constitutional authority, even in the absence of a congressional statute, to detain enemy combatants, including U.S. citizens? Second, does the so-called Non-Detention Act, 18 U.S.C. 4001(a), which provides that [n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress, apply to military or only to civilian detentions? The plurality, however, found it unnecessary to resolve either of these questions because, in its view, Congress had authorized the detention of citizens in Hamdi s circumstances in the joint resolution authorizing the president to use force against Al Qaeda and those who harbored it, and therefore the Non-Detention Act, assuming it applied, was satisfied. 36 The congressional Authorization for Use of Military Force ( AUMF ), which Congress passed in the immediate wake of September 11, provides the president with authority to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided [the 9 11] attacks or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. 37 Notably, although the AUMF does not mention detentions, let alone detentions of U.S. citizens, the plurality found that its reference to all necessary and appropriate force nevertheless clearly and unmistakably did so authorize the President in the narrow circumstances presented in Hamdi s case. 38 The plurality began by noting that it would find, as consistent with the AUMF, only a narrow definition of the enemy combatant classification: An enemy combatant is a person who is a part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there. 39 In other words, if, as the government alleged, Hamdi was part of the Taliban military forces arrayed against U.S. and coalition forces and was personally engaged in armed conflict against them, he is an enemy combatant subject to preventive detention. 40 This narrow definition is highly significant, in part, because it enabled the plurality to characterize Hamdi as an alleged enemy combatant captured in something akin to a traditional interstate war, rather than as an alleged enemy combatant in the larger war on terrorism. As a result, it could largely avoid directly confronting the administration s broader theories of executive power 36 See Hamdi, supra note 3, Slip Op. at 9 10; 124 S.Ct. at Authorization for Use of Military Force, 115 Stat. 224 (2001). 38 Hamdi, supra note 3, Slip Op. at 12; 124 S.Ct. at Id. at 9; 124 S.Ct. at 2649, quoting Hamdi v. Rumsfeld, Brief for Respondents at 3 (hereinafter Respondent s Brief). 40 See id. at 14; 124 S.Ct. at 2642.

11 138 DEVELOPMENTS in the war on terrorism. 41 This approach was, to some extent, disingenuous because the administration has long characterized not only the Guantánamo detainees captured in Afghanistan but also Hamdi and Padilla as enemy combatants in the war on terrorism and has carefully avoided claiming that they are combatants in the war against Afghanistan. 42 Moreover, if the only legal basis for their detention is their role in the Afghan conflict, it is questionable whether they should be held at all. Certainly, the vast majority of Taliban soldiers captured during the war and detained in Afghanistan were released long ago. 43 It seems likely that the administration is continuing to hold Hamdi, Padilla, and the Guantánamo detainees only because of its suspicions about their connections to terrorist organizations. In any case, the plurality found that the AUMF should be interpreted to authorize, until the end of the Afghan conflict, the detention of enemy combatants as so defined. Detentions, thus limited, are so fundamental and accepted an incident to war as to be an exercise of the necessary and appropriate force Congress has authorized the President to use. 44 This understanding, in turn, was based on long-standing law-of-war principles which permit detentions for the purpose of preventing combatants from returning to the battlefield, but not for the purposes of punishment and not continuing beyond the end of active hostilities. 45 Of course, it is one thing to read the AUMF as authorizing the detention of aliens but quite another to read it as authorizing the detention of U.S. citizens as well. In so ruling, the plurality relied upon another World War II era decision, In re Quirin, 46 in which the Court upheld war crimes trials of both enemy aliens and U.S. citizens by military commission. The plurality read Quirin for the proposition that U.S. citizens that join the enemy s forces are enemy combatants subject to the laws of war to the same extent as enemy aliens. In the plurality s view, although Quirin held only that a U.S. citizen could be tried for war crimes by a military commission, there is nothing in the opinion which suggests that the same approach should not apply in the context of preventive detention. A citizen, like an alien, the plurality reasoned, 41 For further discussion of this point, see infra note and accompanying text. 42 According to the administration, they are enemy combatants in the ongoing armed conflict against al Qaida and its affiliates and supporters. See Guantanamo Review Procedures, supra note 5, at 2(A). 43 There is, however, growing international concern about the relatively small number of detainees still being held in Afghanistan. See Edith M. Lederer, U.N. Expert Wants 725 Taliban Prisoners Released in Afghanistan: Access to Detainees Held by U.S., AP NEWS, Aug. 23, 2004, available at (last visited September 24, 2004). 44 Hamdi, supra note 3, Slip Op. at 10; 124 S.Ct. at See id. at 11 12; 124 S.Ct. at Id. at 13; 124 S.Ct. at U.S. 1 (1942).

12 DEVELOPMENTS 139 if released, would pose the same threat of returning to the front during the ongoing conflict. 47 This claim is undoubtedly the weakest argument in the opinion. The plurality simply ignored the fundamental disanalogy between the two cases. The citizen and the alien, though arguably similarly situated for purposes of war crimes trials, are differently situated when it comes to preventing their return to the battlefield. Preventive detention is ordinarily the only option available in the case of enemy aliens because the laws of war immunize them from criminal punishment for their legitimate acts of war. In contrast, the government can prevent the citizen from returning to the front by prosecuting him for treason or a host of other grave statutory offenses. 48 Thus, neither Quirin nor any other reason offered by the plurality justifies its interpretation of the AUMF. 49 The plurality also had to face another important objection to its approach its apparent inconsistency with the Court s celebrated decision in In re Milligan, 50 a Civil War era decision that had refused to permit the president to apply the laws of war to a citizen in a state that was loyal to the government. 51 In permitting a U.S. citizen to be tried by a military commission, Quirin had largely ignored Milligan, although it purported to distinguish it. 52 One major outstanding constitutional issue thus was whether the Court would choose to 47 Hamdi, supra note 3, Slip Op. at 12; 124 S.Ct. at See Melysa H. Sperber, John Walker Lindh and Yaser Esam Hamdi: Closing the Loophole in International Humanitarian Law for American Nationals Captured Abroad While Fighting with Enemy Forces, 40 AM. CRIM. L. REV. 159 (2003). Of course, war crimes prosecutions may be brought against enemy aliens, as well as citizens, for illegal acts of war. Ironically, given the administration s view that terrorism-related activities constitute war crimes, the traditional distinction between enemy citizens and enemy aliens is diminishing, at least in the context of the war on terrorism. The prosecutor s arsenal of crimes still remains much larger in the case of the citizen, but both citizens and aliens may now be prosecuted in many cases. This development, however, seems to argue more against the necessity of preventive detention altogether rather than favor of extending preventive detention to the citizen. Perhaps, there are other considerations, like the administrative burden that war crimes trials would impose upon a warring party or the difficulty of obtaining evidence for a criminal prosecution in wartime conditions, which might justify the use of preventive detention even in the context of the war on terrorism. The Court however did not articulate any of these concerns and, at least in the case of citizens, it is far from clear that they would be adequate to override the competing claims arising citizenship status. For example, does the concern about overburdening the military with trials justify refusing to give citizens trials, especially if the number of citizens likely to qualify as enemy combatans is low? Likewise, given the wider array of criminal offenses that apply to the citizen, are the evidentiary burdens equally problematic in both contexts? 49 Both Justices Souter and Scalia seemed to recognize this point in their dissenting opinions. See Hamdi, supra note 3, Slip Op. at 9 10; 124 S.Ct. at 2657 (Souter, J., concurring in part, dissenting in part, and concurring in the judgment); id., Slip Op. at 6 8; 124 S.Ct. at 2664 (Scalia, J., dissenting) U.S. (4 Wall.) 2 (1866). 51 See id. at See Quirin, supra note 47, 317 U.S. at 45 6.

13 140 DEVELOPMENTS follow Milligan or the more recent Quirin. The plurality tried to steer an uncomfortable middle path, refusing to disown Quirin but at the same time striving to preserve Milligan. 53 In the process, the plurality seemed to narrow further the definition of enemy combatant which it was prepared to endorse, emphasizing repeatedly that Hamdi, according to the government s allegations, was captured carrying a weapon against American troops on a foreign battlefield. 54 The scope of the definition of enemy combatant which the Court is willing to endorse as within the authorization of the AUMF is, of course, an exceedingly important question. Indeed, it is fair to say that what is at stake goes to the heart of the constitutional liberties of the citizen and the character of the polity. At this stage, the plurality was only willing to accept an extremely narrow definition requiring that a citizen be part of or supporting forces hostile to the United States, actually be engaged in armed conflict against the United States, and be arrested in arms on a foreign battlefield in something like a traditional interstate war. How far the Court will be willing to broaden this definition in future cases is difficult to say, though certainly the plurality s discussion suggests a great reluctance to go much further. The fact that four justices believe that there is no authority for detaining citizens even in these circumstances makes it all the more likely that a narrow interpretation will prevail. Although, as noted, the plurality largely avoided addressing the administration s claim to expanded war powers in the context of the war on terrorism by conceptualizing Hamdi as a detainee in the Afghan conflict rather than in the wider war on terrorism it did, at one point, feel compelled to confront the administration s approach more directly. Hamdi argued that even if the AUFM authorized the detention of U.S. citizens captured on a foreign battlefield, it did not authorize their indefinite detention, quite possibly for life. Because the administration considered him a detainee in the war on terrorism, however, that would be the effect of applying the traditional principle of the law of war, developed in the context of interstate war, that detention may continue until the end of hostilities. The war on terrorism is likely to be a multi-generational struggle and is certainly one that will never end in a peace treaty. 55 In response to this argument, the plurality invoked its view that Hamdi is a detainee in the Afghan war and reasoned that, because there are still substantial numbers of U.S. troops on the ground engaged in active conflict, there is as yet no need to address his concern. 56 However, the plurality did not stop there. Crediting Hamdi s worry, it observed that the national security underpinnings of the war on terror... are broad and malleable. It then noted that [i]f the Government does not consider this unconventional war won for two 53 See Hamdi, supra note 3, Slip Op. at 14 6; 124 S.Ct. at Id., Slip Op. at 14 n.1; 124 S.Ct. at 2642 n See id., Slip Op. at 12 3; 124 S.Ct. at See id., Slip Op. at 13 4; 124 S.Ct. at

14 DEVELOPMENTS 141 generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi s detention could last for the rest of his life. 57 These observations then led the plurality to reject one of the fundamental premises of the administration s post-september 11 constitutional order: If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. 58 In other words, the differences between interstate war and the war on terrorism may require a fundamental reevaluation of the scope of executive war powers to prevent undue threats to liberty. This observation, moreover, was tied to another of equal significance. The administration has aggressively pressed the view that the purpose of detention in the war on terrorism is not limited to preventing the return of enemy combatants to the battlefield, but includes as well intelligence gathering and interrogation. Indeed, establishing this claim has been a central part of its overall legal strategy and is intimately connected to its efforts to expand the range of permissible interrogation methods. 59 The plurality, however, refused to countenance this approach, insisting instead that the purpose of detention under the laws of war is solely prevention. Provoked by Hamdi s argument about indefinite detention, it declared: Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. 60 Having upheld the authority of the president to detain Hamdi under these circumstances, the plurality then turned to the second question at issue: what procedures due process requires the government to afford Hamdi in order to challenge the factual basis for his detention. The Bush administration argued that respect for the separation of powers and the limited institutional capabilities of courts in matters of military decision-making require the 57 Id., Slip Op. at 12; 124 S.Ct. at Id., Slip Op. at 13; 124 S.Ct. at See Rumsfeld v. Padilla, Brief for the Petitioner, at (Mar. 2004); Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (Apr. 4, 2003) (hereinafter Working Group Torture Memo). 60 See Hamdi, supra note 3, Slip Op. at 13; 124 S.Ct. at See id. at 10 11; 124 S.Ct. at Indeed, notwithstanding the administration s hard pressed position that granting detainees access to lawyers would undermine its intelligence gathering efforts, the plurality refused to consider intelligence gathering as a legitimate governmental interest to be weighed along with other interests in determining what procedures Hamdi was entitled to under the principles of due process. See id., Slip Op. at 24 9; 124 S.Ct. at ; infra notes and accompanying text. Of course, the Court did not deny that the government may interrogate detainees, just that intelligence gathering is an independent justification for detention and a reason for denying detainees due process procedural protections. Perhaps the Court would recognize an exception for short term detentions for purposes of interrogation. The issue, however, did not arise in these cases.

15 142 DEVELOPMENTS Court to defer to the military s judgment. 61 A detainee like Hamdi, it claimed, has no right to challenge the factual assertions of the executive but only the legality of the overall scheme of detention. Once the Court finds that the president has authority to detain enemy combatants in general, that is the end of the matter. At most, the administration maintained, the Court may require the submission of an affidavit setting forth in general terms the factual basis for the executive s classification of the detainee, which the Court must accept as true and the detainee may not attempt to rebut. Indeed, in the administration s view, even through the habeas proceeding, the executive can hold the detainee incommunicado and deny him access to a lawyer. 62 Eight justices flatly rejected these claims. As the plurality explained, the separation of powers does not compel the executive s position but precisely the reverse. Although the courts must accord the greatest respect to the military in matters related to the prosecution of a war, the separation of powers requires that the time-honored and constitutionally mandated role of the courts in safeguarding the citizen from unjustified deprivations of liberty be upheld as well. 63 Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme, Justice O Connor observed, cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. 64 It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. 65 Having thus dispensed with one of the administration s key arguments, the plurality announced that, notwithstanding the extraordinary context, it would apply its traditional due process balancing test to determine the procedures which must be accorded to Hamdi. Under this test, the Court balances the private and public interests at stake to determine what procedures are required. 66 Hamdi s liberty interest was particularly weighty, and history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse. 67 On the other side, 61 Hamdi supra note 3, Slip Op. at 20; 124 S.Ct. at 2645, quoting administration s Hamdi Brief, supra note 40 at See Hamdi, supra note 3, Slip Op. at 20 1; 124 S.Ct. at Id., Slip Op. at 28; 124 S.Ct. at Id., Slip Op. at 29; 124 S.Ct. at 2650 (emphasis in original). 65 Id., Slip Op. at 30; 124 S.Ct. at See Id., Slip Op. at 21 2; 124 S.Ct. at Id., Slip Op. at 23; 124 S.Ct. at 2647.

16 DEVELOPMENTS 143 however, the government s interest in ensuring that enemy combatants do not return to the battlefield, the plurality found, was also weighty. In addition, if Hamdi were entitled to trial-like procedures, military officers might be distracted from pressing the war effort to conducting litigation half way around the world, and discovery into military operations would run the risk of intruding on national defense secrets in a sometimes futile effort to obtain evidence buried under the rubble of war. 68 In balancing these considerations, the plurality insisted that it is essential, notwithstanding the ongoing conflict, to avoid giving short shrift to the values that this country holds dear or to the privilege that is American citizenship. 69 One might reasonably question, however, how fully it realized this ambition. On the one hand, the plurality held that a citizen-detainee... must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government s factual assertions before a neutral decisionmaker, and it upheld the citizen s right to counsel. 70 On the other, it held that, in order to avoid unduly burdening the executive in a time of ongoing conflict, the government can rely upon hearsay evidence and insist upon a presumption in favor of its evidence so long as the presumption is rebuttable and the detainee has a fair opportunity to offer contrary evidence. 71 Perhaps most controversially, the plurality also suggested that these due process standards might possibly be satisfied by an appropriately authorized and properly constituted military tribunal, and, referencing Article 5 of the Third Geneva Convention and related U.S. Army Regulations, it noted that the regulations already provide for a similar tribunal in cases where an enemy detainee claims entitlement to prisoner of war status. 72 This observation is significant for at least two reasons. First, it seems deeply inconsistent with the plurality s emphasis on the privilege that is American citizenship. After all, it seems here to be relegating the citizen to precisely the same position as the enemy alien under the laws of war. The plurality might simply have looked to the Geneva Convention in the first place if, in the end, the Constitution offers the citizen nothing more. Second, its resort to standards derived from the Geneva Convention may provide a hint as to where the Court may be heading, when it finally reaches the merits, in the case of the Guantánamo detainees. Surely, they are not entitled to more than U.S. citizens, and it seems unlikely that they could be entitled to less than the tribunal provided for in Article 5 of the Geneva Convention and the long-standing military regulations. 68 See id., Slip Op. at S.Ct. at Id., Slip Op. at 25; 124 S.Ct. at See id., at 32; 124 S.Ct. at Id., Slip Op. at 26; 124 S.Ct. at See id., Slip Op. at 27; 124 S.Ct. at Id., Slip Op. at 31; 124 S.Ct. at 2651.