A War Like No Other (12 page)

A second failing of minimalism arises from its supposition of a necessary antagonism between constitutional pronouncements and democratic values. I maintain that democracy should not be understood as simple majoritarianism (“let the political branches have their say”) but as a deep and broad-based deliberative process in which we—all of us—give content to the values that define us as a nation. Constitutional pronouncements by the Court do not prevent or even stifle such deliberations but give them a certain vitality by fully revealing the threat that is posed to our basic commitments.

The Practice of Minimalism

One of the fundamental tenets of the U.S. Constitution is the principle of freedom. It denies the government the authority to imprison anyone unless that person is charged with a crime and swiftly brought to trial. An exception is allowed for enemy combatants seized on the battlefield. The Bush administration invoked this exception to incarcerate the Guantánamo prisoners and to hold them without criminal charges. Some prisoners claimed, however, that their imprisonment was mistaken—that they were not, in fact, soldiers of the Taliban or al-Qaeda—and sought a writ of habeas corpus in federal court in Washington, D.C., to press their claim.

The writ of habeas corpus has both a statutory and a constitutional basis. Article I, Section 9, of the U.S. Constitution identifies the terms under which habeas corpus may be suspended, and by regulating the suspension and thus presupposing its availability, it gives some measure of constitutional protection to the writ. On top of that, a federal statute specifically grants federal courts jurisdiction to issue the writ of habeas corpus.
⁵
In the first Guantánamo
case to reach the Supreme Court—the 2004 decision in
Rasul v. Bush
⁶
—the Supreme Court put the constitutional issues aside and held only that the prisoners could utilize the federal statute to adjudicate their claim to freedom. The Court did not decide the merits of the prisoners’ claim to freedom, only that the federal district court had, as a matter of statutory interpretation, jurisdiction to hear that claim as long as the prisoners’ custodian—the secretary of defense—was within reach of the court.

In analyzing the case in this way, Justice Stevens failed to engage the major premise that was the cornerstone of the government’s argument and that had been sustained by the Court of Appeals. Relying on Rehnquist’s ruling in the 1990 Mexican case, the government argued that habeas was not available because the prisoners do not possess any substantive constitutional rights that might be vindicated by the writ. They are aliens, and although aliens residing in this country may enjoy the same constitutional rights as American citizens, this cannot be said of the Guantánamo prisoners, who have no independent ties to the political community and are imprisoned abroad. Accepting the government’s argument, the Court of Appeals ruled, “We cannot see why, or how, the writ may be made available to aliens abroad when basic constitutional rights are not.”
⁷

To his credit, Justice Stevens emphasized in his opinion in
Rasul
the special, somewhat anomalous, status of Guantánamo. Although it is not part of the United States as that term is ordinarily used, it has been under the exclusive control and authority of the United States for more than a century. Justice Stevens also listed in a single footnote, note 15, the essential claims of the prisoners—that they are not enemy combatants and have been held incommunicado for some time without being charged with a crime—and concluded by noting that if these allegations were proved true, their incarceration would be unlawful. However, Justice Stevens did not otherwise address the constitutional
premise underlying the argument of the government and the decision of the lower court.

In July 2004, immediately after the
Rasul
decision, the Bush administration established a process in Guantánamo to address the claims of those prisoners who denied that they were enemy combatants.
⁸
Under the scheme then established, these claims are to be resolved by tribunals, referred to as Combatant Status Review Tribunals, that are staffed entirely by military officers appointed by the secretary of the navy and are governed by regulations issued by him. According to these regulations, prisoners are allowed to have only military officers with security clearance represent them in proceedings, not lawyers. The tribunals are not bound by the rules of evidence such as would apply in a court of law, and are permitted to consider any evidence—including, presumably, hearsay and the product of coercive interrogation—that the presiding officer deems relevant. The decisions are to be reviewed by a designate of the secretary of the navy. Each year, a separate military panel examines the need for continued detention of persons previously found to be enemy combatants. These decisions are, in turn, reviewed by a civilian official designated by the secretary.

The roots of this procedure can be traced to another decision handed down on the same day as
Rasul: Hamdi v. Rumsfeld.
⁹
This case involved an American citizen who was captured in Afghanistan and held in a naval brig in South Carolina. The government accused him of being a soldier of the Taliban, even though he denied having taken up arms against the United States and claimed that he had been in Afghanistan for personal reasons. He insisted that the internal executive procedures used by the Bush administration to determine that he was an enemy combatant were insufficient under the Constitution.

Justice O’Connor announced the opinion of the Court. In it, she granted the prisoner, as a matter of due process, an
evidentiary hearing on his claim to freedom. She also declared that the prisoner was entitled to access to counsel. She added, however, that the tribunal need not abide by the stringent evidentiary requirements of a federal trial. In that vein, she held that the government could rely on field records to create a presumption of lawfulness of the detentions and that the burden would be on the prisoners to rebut the presumption. Even more, O’Connor said that military tribunals might be used to hear these claims of freedom. Justice Souter, joined by Justice Ginsburg, whose votes were needed to give O’Connor’s opinion majority status, refused to endorse the use of military tribunals as a substitute for habeas corpus.

Following
Hamdi,
it was unclear where the claims of freedom of American citizens held as enemy combatants might be adjudicated. Would only a federal court under a writ of habeas corpus be acceptable or would a military tribunal suffice? Despite this uncertainty, the Bush administration quickly acted on the assumption that a military tribunal was acceptable for the Guantánamo prisoners—all of whom are aliens. Indeed, since not a word in
Rasul
required the procedural apparatus that the military established in Guantánamo in July 2004, the Bush administration’s decision to set up Combatant Status Review Tribunals there might be seen as a preemptive strike against the efforts of the Guantánamo prisoners to obtain access to federal habeas corpus.

At the same time that it established these tribunals, the Bush administration turned to Congress to explicitly foreclose the habeas remedy. Since the
Rasul
decision held that the jurisdictional requirements of the habeas statute could be satisfied if the custodians of the prisoners were within the reach of the district court, it was, of course, within the power of Congress to amend the statute to deny a habeas remedy to the Guantánamo prisoners. Congress exercised this power in the Detainee Treatment Act of
2005, which amended the habeas corpus statute to provide that no court shall have jurisdiction to hear “an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantánamo Bay, Cuba.”
¹⁰

The statute also gave the Court of Appeals for the District of Columbia exclusive jurisdiction to review the decisions of the Combatant Status Review Tribunals and any military commissions that might be established to try the prisoners for war crimes. Appellate review was limited to whether the tribunal had complied with the standards and procedures established by the secretary of defense, and whether those standards and procedures were consistent with the Constitution—provided, the statute was quick to add, the Constitution was applicable to such proceedings. In addition to that restrictive language, almost out of an abundance of caution, the statute declared that it should not be construed as conferring any constitutional rights on aliens detained as enemy combatants in Guantánamo.

The Supreme Court’s first encounter with the Detainee Treatment Act of 2005 occurred in its June 2006 decision in
Hamdan v. Rumsfeld.
¹¹
At issue in that case was not so much the principle of freedom, which had been central to
Rasul,
but the requirement, also rooted in the Due Process Clause, of procedural fairness. The Court was asked whether a prisoner—in this instance, Salim Ahmed Hamdan, who was alleged to have been Osama bin Laden’s bodyguard and personal driver—could be tried for war crimes by a military commission specifically established for that purpose by the president.

To stop his trial before the military commission, Hamdan had sought a writ of habeas corpus. He filed this petition before the enactment of the Detainee Treatment Act, but, as it turned out, his habeas petition was pending in the Supreme Court at the time the statute was enacted. The first question the Supreme Court had to consider, therefore, was whether the bar on habeas corpus
in the statute prevented the Court from reaching the merits of the prisoner’s claim.

Justice Stevens responded to this question by subtly parsing the statutory language. The Detainee Treatment Act stated that its prohibition on the issuance of habeas writs by federal courts “shall take effect on the date of enactment.”
¹²
It also contained another, separate provision expressly stating that the rule granting the Court of Appeals for the District of Columbia Circuit exclusive jurisdiction to review final decisions of the Combatant Status Review Tribunals or military commissions should be applicable to cases pending on the date of enactment.
¹³
Stevens relied on this second provision relating to appellate review by the Court of Appeals, unmistakably applicable to pending cases, to infer that Congress had not intended the act’s general bar on granting habeas relief to Guantánamo prisoners to apply to pending cases such as Hamdan’s.
¹⁴

The minimalism of
Hamdan
was also manifest in the way the Supreme Court ruled on the merits of the claim challenging the use of military commissions to try some of the Guantánamo prisoners for war crimes. Justice Stevens fully understood the highly irregular and exceptional nature of military commissions. They are tribunals of exigency, which should be used, in his terms, to punish an “act for which [the accused] was caught red-handed in a theater of war and which military efficiency demands be tried expeditiously.” Stevens also noted that Hamdan’s case did not fit this model because the Guantánamo prison was not in a theater of war and because three years had lapsed between Hamdan’s capture and the filing of formal charges. These discrepancies led Justice Stevens to express the fear that for Hamdan and the other Guantánamo prisoners about to be tried, a military commission had been transformed “from a tribunal of true exigency into a more convenient adjudicatory tool.” Yet, in the end, Stevens did not turn these sentiments into a principle
of higher law. As minimalism dictates, he declared that the use of military commissions in Guantánamo was not authorized by statute and further that the circumstances that might allow the president, acting as commander in chief, to establish military commissions on his own—the need to establish swift and immediate justice in an active theater of war—were not present.

The most plausible source of authority for the establishment of the commissions is Article 21 of the Uniform Code of Military Justice (UCMJ), which provides that the granting of jurisdiction for courts-martial should not be construed as depriving military commissions of jurisdiction “that by statute or by the law of war, may be tried by military commissions.”
¹⁵
Yet, for Justice Stevens, Article 21 did not authorize the use of military commissions but merely preserved those independently authorized by either statute or the law of war. Stevens found no other statute authorizing the use of military commissions to try the Guantánamo prisoners.

Stevens did not preclude the possibility that the president might under certain circumstances establish on his own military commissions to try war crimes. But Stevens tightly limited such an exercise of authority to “military necessity”—that is, to situations where a soldier commits a war crime in a theater of active combat, is caught red-handed, and must immediately be tried as a way of controlling the future course of ongoing military operations. Such a view of the limited jurisdiction of presidentially convened military commissions would make the use of such commissions in Guantánamo odd, particularly with respect to Hamdan, who was arrested in 2001 and not charged until 2004. Speaking more generally, Stevens concluded that conspiracy to commit a war crime (the charge against Hamdan) was not itself a war crime cognizable by the military commission established by the president on his own.

Justice Stevens not only complained of the absence of statutory authority for the Guantánamo commissions and the failure
to meet the stringent conditions that allowed the president to act on his own. He also found that the procedures to be used by the Guantánamo commissions violated the requirement of Article 36 of the UCMJ that the procedures of courts-martial and military commissions be “uniform insofar as practicable.”
¹⁶
In reaching this conclusion, he placed special emphasis on the fact that before a commission the accused may be excluded from the proceeding or denied access to the information used against him under a broader range of circumstances than courts-martial would allow. Justice Stevens also observed that the rules of evidence of the Guantánamo commissions were much less stringent than those of courts-martial. Before a commission, prosecutors could introduce evidence that the presiding judge deemed to “have probative value to a reasonable person,”
¹⁷
a standard that seems to render admissible hearsay evidence and even evidence obtained by coercion. In addition, those convicted by a Guantánamo commission have no right to appeal to a civilian court unless they face capital punishment or imprisonment for more than ten years. However, rather than condemn these rules as a violation of the duty, rooted in the Due Process Clause, to provide fair procedures, Justice Stevens, guided by the principles of minimalism, held only that they violated the uniformity requirement of Article 36 of the UCMJ.