The Magazine

Two Out of Three Ain't Bad

Assessing the Supreme Court's detainee rulings.

Jul 19, 2004, Vol. 9, No. 42 • By PETER BERKOWITZ
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GIVEN his constitutional role as commander in chief, with principal responsibility for the nation's security, the president might be expected to overreach occasionally in times of war, to place the energetic defense of the country ahead of the meticulous safeguarding of civil liberties. Equally, given its constitutional role as guardian of the fundamental laws of the land, the Supreme Court might be expected to patrol zealously the boundaries established by the Constitution for the protection of individual liberty, and occasionally even to go to an extreme to ensure that the executive respects them. And as a consequence of the wartime contest between the executive and the Court, as each seeks to advance the interests and uphold the honor of its constitutional office, one could reasonably hope that both national security and civil liberties would be given their due to the extent possible.

On the basis of the Court's decisions in the enemy combatant detention cases, handed down June 28, it is a pleasure to report that the system is working more or less as designed. In waging the war on terror, the executive branch has certainly pushed the legal limits of its prerogatives. And the Supreme Court has responded, pushing back, at times quite aggressively, in the opposite direction.

This is certainly not to suggest that the legal positions of the administration have been ideal, or that in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush the Court achieved an optimal balance between national security and civil liberties. To the contrary. The Bush administration, for example, suffered self-inflicted wounds when it refused to grant the detainees at Guantanamo Bay the adequate minimal process, well grounded in the laws of war, for determining whether the government had correctly classified them as enemy combatants. And in Rasul v. Bush a provoked Court struck back. It ruled that noncitizen or alien enemy combatants who have not set foot in the United States and are detained outside of the territorial jurisdiction of any U.S. federal court nevertheless have a right to challenge their detentions in any federal district court they please. Unfortunately, to reach this result the Court distorted its own cases, arrogating to itself a scope of review of military detentions it had not previously been thought to possess.

So, the Supreme Court now having spoken, there remains work to be done in hammering out the proper balance between waging the present war effectively and maintaining the rule of law scrupulously. This is particularly challenging as the nation confronts a shadowy adversary, himself ruthlessly indifferent to the distinction between lawful combatants and civilian noncombatants, who has at his disposal or is bent on obtaining weapons of great destructiveness. Still, the United States is at war, and the constitutional order holds.

Indeed, notwithstanding its overreaching, the Court's decisions vindicated the core constitutional principle that there is no unreviewable executive power to detain individuals. To be sure, in none of the cases did the government deny the right to due process. What was at issue in all three was the degree of process due an individual designated by the military, or the president directly, as an enemy combatant. In essence, the government contended that it was enough to assert facts that, if true, would warrant such a designation. And the Court ruled, in sum, that individuals held as enemy combatants--whether citizens or aliens, whether held in the United States or abroad--had the right to challenge before an impartial tribunal the factual allegations on the basis of which they had been captured and incarcerated.

In Hamdi v. Rumsfeld, the court struck the balance nicely. Seized on the battlefield in Afghanistan in 2001, Yaser Esam Hamdi, a U.S. citizen, has been detained in the United States since April 2002 without formal charges or proceedings. This was necessary, argued the Bush administration, not only to prevent him from returning to fight with the enemy (the internationally recognized justification for the detention of enemy combatants) but also in order to subject him to extended interrogation that could yield precious information concerning al Qaeda's whereabouts, intentions, and capabilities. Hamdi's court-appointed counsel countered that indefinite military detention without charge or trial in a war that could last the detainee's lifetime violated his Fifth and Fourteenth Amendment due process rights, in particular the right of all persons detained in the United States to the writ of habeas corpus, the legal means by which a detainee asks a court to review the basis for his imprisonment.