A War Like No Other (11 page)

Prologue to Chapter 3

Trevor Sutton

Minimalism is a theory of—or, since proponents of minimalism eschew theories, an approach to—judicial decision making according to which judges should decide cases on the most limited grounds available. Minimalism’s most famous advocate, Professor Cass Sunstein, described minimalist judges as those who “seek to avoid broad rules and abstract theories, and attempt to focus their attention only on what is necessary to resolve particular disputes.” Sunstein contrasts minimalism with the judicial philosophy of “those who seek to decide cases in a way that sets broad rules for the future and that also gives theoretical justifications for outcomes.” Minimalist jurists are modest, Sunstein argues. They recognize that the risk of judicial error is substantial and grave, and strain to avoid foreclosing other decisions in other cases through overbroad rulings. The paradigmatic minimalist jurist, in Sunstein’s view, is Justice Sandra Day O’Connor, although Sunstein also claims Justices Ruth Bader Ginsburg, David Souter, Stephen Breyer, and Anthony Kennedy as minimalists. Justice John Paul Stevens, whose opinions in
Rasul
and
Hamdan
serve as the central examples of minimalism’s dangers in the following essay, depended on all four of these jurists to form a majority.

Sunstein sees many advantages in a minimalist approach to jurisprudence, but the virtue he is most eager to emphasize is minimalism’s “close connection” with democracy. Minimalist judges promote democratic values, Sunstein argues, by confining their legal analysis to the unique features of the case before them, thereby reserving larger questions for the political branches. In Sunstein’s view, broad rulings, even when they are correct, run the risk of short-circuiting “the kind of evolution, adaptation, and argumentative give-and-take that tend to accompany lasting social reform.” Minimalism, by contrast, “requires the legislature to make crucial judgments” by “spurring processes of democratic deliberation.” Many of the examples Sunstein gives in his minimalist opus,
One Case at a Time,
involve judges applying narrow constitutional principles to fact-specific inquiries. But sometimes the imperatives of minimalism can lead jurists to shun a constitutional resolution in any form and dispose of a case on purely statutory grounds. Although Owen Fiss’s belief in the principle of freedom, examined in several essays in this volume, stands in opposition to both of these forms of minimalism, it is the second, statute-focused variety at which “The Perils of Minimalism” takes special aim.

This chapter, “The Perils of Minimalism,” was first presented as a lecture at Tel Aviv University in 2008, and was later published in
Theoretical Inquiries in Law.
Both versions were prepared after the Supreme Court’s decision in
Hamdan v. Rumsfeld
and Congress’s enactment of the Military Commissions Act of 2006 in response to that decision, but before the Court ruled in
Boumediene v. Bush
that foreign nationals detained at Guantánamo had a constitutional right to seek habeas corpus. Although
Boumediene,
perhaps to an even greater
degree than
Hamdi,
was heralded as a powerful victory for constitutional principles, with the benefit of hindsight it is possible to recognize the deficiencies of the decision. To begin with, access to habeas has had little practical effect on the Guantánamo detainees’ quest for freedom, in large part because of the lack of clarity surrounding the scope of habeas review and the general skepticism of the judges of the District of Columbia Circuit toward detainee claims. In addition, the multivariate test devised by Justice Kennedy to determine the availability of habeas has created significant uncertainty, specifically with regard to the writ’s availability in Bagram prison in Afghanistan. Moreover, although
Boumediene,
unlike
Hamdan,
dared to make a constitutional pronouncement, it nevertheless also may be regarded as a minimalist opinion, for it sought to resolve only the less controversial of the two issues examined in
Hamdan
(habeas), and through its silence perpetuated the implicit premise of
Hamdan
that military commissions are not constitutionally defective.

Guantánamo remains open in 2015, and the use of military commissions to try alleged terrorists continues under President Obama despite his campaign promise to close the prison and his aborted efforts to try some high-profile detainees in civilian courts. That this state of affairs persists despite more than a decade of litigation and several Supreme Court decisions celebrated as “landmark” civil liberties victories owes much to the Supreme Court’s preference for the passive virtues of minimalism at the expense of a full recognition of its responsibility to nourish and protect the Constitution.

Chapter 3

THE PERILS OF MINIMALISM

C
uba is an island 112 miles off the coast of Florida. The United States freed it of Spanish dominion in the Spanish-American War of 1898 but did not take possession of Cuba as spoils of war. Rather, it contented itself with a 45-square-mile area on the southeastern corner of the island, known as Guantánamo Bay, which has been an American naval station ever since.

As a purely formal matter, the United States occupies Guantánamo under a lease, which was first executed in 1903 and modified in 1934. The lease reserves “ultimate sovereignty” in Cuba, but it has no term. The United States possesses the unilateral power to terminate the lease, and has occupied and maintained exclusive control of the territory for more than a century.

Each year the United States tenders the rent—approximately $4,000—but for decades, the Castro government has refused to accept it. The Guantánamo Naval Station has its own residences and stores, some of which are well-known American franchises, and it is separated from the rest of Cuba by an extensive fencing system. There is no exchange between the rest of the island and the U.S.-run naval station, with the exception of a handful
of elderly Cuban employees. Cuban law, such as it is, does not reach Guantánamo.

In January 2002, as the initial phase of the war in Afghanistan still raged, the Bush administration decided to open a prison in Guantánamo, and it has interned hundreds of men there who were captured in that war. Over the years, it has been used to detain al-Qaeda suspects seized in a wide number of countries—including Bosnia, Thailand, and Zambia—but Guantánamo remains first and foremost a prison for men captured in Afghanistan or near the border in Pakistan. None of the Guantánamo prisoners is an American citizen. At its height, between six hundred and eight hundred men were imprisoned at Guantánamo.

The United States invaded Afghanistan in October 2001 and ousted the Taliban in less than six months. Under the oversight of the United States and its allies, by the end of 2004 the Afghan people adopted a constitution and held democratic elections. At that point, the war in Afghanistan appeared at an end. Even though there is a growing insurgency in parts of that country, all claims of military exigency that might have justified the initial detention policy at Guantánamo today seem stale. It is important to remember, however, that the United States invaded Afghanistan not simply to oust the Taliban regime for supporting and protecting al-Qaeda but also, and perhaps more important, to vanquish al-Qaeda itself. This objective has not been achieved, and it is this larger conflict between al-Qaeda and the United States that has been used to justify the continuing detention of the Guantánamo prisoners.

The basic constitutional question posed by Guantánamo is whether the prisoners held there have any constitutional rights that might be protected by the courts and, if so, what those rights might be. This may not seem much of a question in many democracies throughout the world, including Israel, because they view their constitutions in universalistic terms. The guarantee
of human dignity, for example, controls the actions of Israeli officers wherever they act and against whomever they act.
¹
The U.S. Supreme Court moved toward such a cosmopolitan conception of the U.S. Constitution during the Warren Court era, but starting in 1990 it headed in a different direction.

The issue arose in a case involving a search of the home—in Mexico—of a Mexican citizen who had been seized—also in Mexico—by agents of the United States and who was then taken for trial to the United States.
²
The search had been conducted by American officials and was challenged as a violation of the Fourth Amendment. Chief Justice William Rehnquist, purporting to speak for a majority, wrote an opinion that espoused a more nationalist conception of the Constitution. According to him, the Constitution protected American citizens from the actions of U.S. officials no matter where they were located. It also protected foreign nationals when they were living in the United States and were part of the American political community, but the Constitution, reasoned Rehnquist, afforded no protection to foreign nationals abroad. The Bush administration’s decision to transform Guantánamo into a prison rests on the assumption that it, like Mexico, is not part of the United States and that the prisoners, since they are all aliens, cannot claim the protection of the Constitution and the various legal procedures, such as habeas corpus, that could secure that protection.

For their part, the Guantánamo prisoners and their lawyers challenged the legality of their detention and thus contested the scope and force of Rehnquist’s 1990 ruling. Rehnquist had emphasized the special wording of the Fourth Amendment, which speaks of “the right of the people,” and thus it was not at all clear that the 1990 case applied to provisions such as the Due Process Clause of the Fifth Amendment, which protects the life, liberty, and property of “any person.” A question could also be raised as to whether Rehnquist’s opinion had the backing of a majority and
thus governed. The crucial fifth vote came from Justice Anthony Kennedy, then a recent appointee, who said that he joined Rehnquist’s opinion, but then went on to express the view that “the Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic.”
³
He implied that the government might be obliged to respect certain basic rights even when acting overseas, though constitutional norms would have to be adjusted to take account of the different contexts. Kennedy thought the phrase “the right of the people” appearing in the Fourth Amendment was not a term of limitation but more a rhetorical flourish to emphasize the rights being conferred.

On two separate occasions, once in June 2004 and then again in June 2006, the Supreme Court addressed the claims of the Guantánamo prisoners. Both decisions rebuffed the Bush administration and received banner headlines in the press. Such results were indeed remarkable because a majority of the justices seemed to cut through a tradition in American history of judicial deference to the executive on military matters. Yet, on closer inspection, these victories for the Guantánamo prisoners were less momentous than they first appeared. Rather than resolving the basic constitutional claims of the prisoners, the Court based these decisions entirely on statutory grounds.

In fashioning the opinions in this way, Justice Stevens, who wrote for the Court in both instances, seemed to be pursuing a methodology—widely referred to as minimalism—that has gained currency in recent years in some corners of the liberal establishment in the United States.
⁴
One tenet of minimalism directs the judiciary to resolve cases on statutory grounds if at all possible, and to turn to the constitutional issues only if necessary. Those who defend this method of decision making argue that minimalism lets judges reduce the potential costs of wrong decisions. Constitutional decisions are for all time, the apostles of minimalism note, while a statutory interpretation can easily
be corrected. Perhaps more important, minimalists also say that relying on statutory grounds encourages—nay, requires—the president to work with Congress to further his objectives, thereby promoting the democratic values of the nation.

To the surprise of no one, after each of the Court’s decisions the Bush administration turned to Congress and quickly obtained the necessary legislative warrant for its detention program in Guantánamo. As a consequence, Congress became a full partner of the president in this front of the War on Terror. This turn of events has led me to ponder the wisdom of minimalism as a decisional strategy.

Part of my concern with minimalism is specific to the Guantánamo detainees. For years on end, they have been unable to obtain a satisfactory response to their constitutional claims. Their continued imprisonment has been the subject of a series of judicial rulings and congressional enactments, and the Court’s initial decisions, couched in statutory terms that virtually invited legislative intervention, made it more difficult—not impossible, but considerably more difficult—for the Court to reach a satisfactory resolution of the ultimate constitutional issues. In this respect, the decision to proceed in two steps, as minimalism dictates, already has had enormous costs, even if the Court eventually affords the detainees all that the Constitution promises.

My concern, however, is not confined to the Guantánamo prisoners and their hardships. Minimalism can be faulted not just for the hardship it imposed upon the prisoners and government institutions but also because it is based on two theoretical misunderstandings. One relates to the Court’s function. To my eyes, the Court sits not to resolve the dispute before it, which may leave the Court free to choose the narrowest ground that would serve that purpose, but rather to nourish and protect the basic values of the Constitution. The duty of the Court is to act—not minimally nor even maximally but responsibly—so as to be
mindful of its role within the political system as the guardian of the Constitution.