A War Like No Other (13 page)

As an alternative ground for condemning the procedures of the Guantánamo commissions, Justice Stevens cited Article 3 of the Fourth Geneva Convention of 1949. That article, common to all of the Geneva Conventions, prohibits the execution or imposition of sentences “without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
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According to Stevens, absent any pragmatic considerations that would warrrant departure from court-martial practice, a military commission set up to try a particular person
or group of persons, such as the Guantánamo detainees, is not a “regularly constituted tribunal” within the meaning of Article 3. Justice Stevens also condemned the procedural rules to be used by Bush’s commissions that permitted the exclusion of the accused from the trial and the denial of access to evidence against him as inconsistent with the language in Article 3 requiring that the tribunal imposing sentence afford “all the judicial guarantees recognized as indispensable by civilized people.” To support this conclusion, Stevens cited Article 75 of Protocol 1 of the Geneva Convention of 1949, which affirmed the right to be tried in one’s presence. Stevens did, however, soften his condemnation of this procedural feature of the Guantánamo commissions by noting that it lacked statutory endorsement. In so doing, he suggested that he might acquiesce in the exclusion of the accused from trial if that exclusion was authorized by statute.

Justice Kennedy had some qualms with Stevens’s analysis of these procedural issues. He respected what he called the “right of presence” but thought that the trial would have to unfold before the Court could determine whether there was any significant discrepancy between the commissions’ procedures and those of courts-martial. Kennedy was also unwilling to ground the right to presence on Protocol 1 of the Geneva Convention, since the United States has refused to ratify it. In this way, Kennedy deprived another portion of Stevens’s opinion—in this instance, the reference to the Geneva Convention—of majority status.

In other respects, however, Kennedy agreed with the thrust of Steven’s analysis. He was of the view that the establishment of the military commissions at Guantánamo were not authorized by Congress and in fact departed in important ways from the systems of courts-martial established by Congress in the UCMJ. In identifying these departures, Kennedy stressed the structural aspects of the arrangement, such as the way the membership of the commission was composed. These departures had
two consequences for Kennedy. First, they meant that the commissions could not be considered regularly constituted courts as required by the law of war (referred to in Article 21), and second, that the uniformity requirement of Article 36 was violated. Much in the spirit of Stevens, Kennedy was prepared to allow the president some slack, provided military necessity required it, but he concluded that there was no justification for such departures in this instance. Kennedy joined the crucial portions of Stevens’s opinion; Ginsburg and Breyer, who had joined Stevens’s opinion, also largely embraced Kennedy’s opinion.

Not too much should be read into Stevens’s use of the Geneva Convention, even standing by itself, as many commentators have done.
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It did not represent a departure from the minimalist premises undergirding his opinion. Although Stevens ruled that the Fourth Geneva Convention was applicable to the conflict between the United States and al-Qaeda, he assumed that the convention was not, by itself, judicially enforceable. The relevance of the convention stemmed only from the fact that Article 21 of the UCMJ, the savings clause, conditions the use of military commissions on compliance with the law of war, which of course includes the Geneva Conventions. What rendered the procedures of Guantánamo commissions illegal for Stevens was not Article 3 common to all of the Geneva Conventions but rather Article 21 of the UCMJ.

In
Rasul,
the Court rejected an argument of the government (about the interpretation of the federal habeas statute). In
Hamdan,
the Court went a step further and impinged more sharply on the exercise of executive power. It set aside the order of the president establishing the Guantánamo military commissions on the ground that the president lacked the necessary authority for issuing such an order and that it conflicted with an existing statutory command that required the procedures of military commissions to conform, unless otherwise impracticable, to those
of courts-martial. Implicit in this ruling was a constitutional judgment about the allocation of powers between the president and Congress. Although the Court did not altogether deny the president the power to establish military commissions, it strictly confined the circumstances when the president might act unilaterally and further ruled that when the president’s order conflicts with a statute of Congress the congressional rule will prevail. In a sense, then, the Court made a constitutional judgment.

Yet the constitutional character of that judgment must be distinguished from a constitutional judgment that would have deemed the use of a military commission to try Hamdan a violation of due process. Although the judgment allocating power among the branches implicit in the
Hamdan
decision confers some constitutional protection on the Guantánamo prisoners, they receive that protection in only an indirect way—as though they are third-party beneficiaries of a constitutional rule allocating powers between Congress and the president. On the other hand, a due process judgment predicated on the unfairness of using military commissions the way Bush contemplated their use would make the Guantánamo prisoners direct beneficiaries of the Bill of Rights.

On the day that
Hamdan
was handed down, legislation was introduced in the Senate to respond to the decision. On October 17, 2006, only four months later, though just weeks before the midterm elections, Congress passed the Military Commissions Act (MCA) of 2006. One provision of the MCA reiterated the ban on habeas corpus and made it applicable “to all cases, without exception, pending on or after the date of enactment.”
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A second feature of the act amended Article 21 of the UCMJ in order to fully authorize the use of military commissions to try the Guantánamo prisoners. It listed the offenses that can be tried before military commissions; the list included conspiracy to violate the laws of war. The MCA promulgated a code of procedure that departed
from the procedural rules used by courts-martial and that, with only some qualifications,
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conformed to the procedural code initially prescribed by the Bush administration. Finally, the MCA removed the Geneva Convention as a bar of any sort to the president’s plan. It declared that the military commissions the president established were consistent with Article 3 of the Geneva Conventions; gave the president the authority to interpret the conventions; and denied that the conventions were judicially enforceable against the United States. The Bush administration welcomed this grant of power, and a number of the Guantánamo prisoners have been placed on trial before military commissions.

In February 2007, the Court of Appeals—the very same court that had made the initial decision in
Rasul
—ruled on the legality of the Military Commissions Act of 2006. The Court of Appeals first held that, as a matter of statutory interpretation, the very same habeas petitions considered in
Rasul
and then again in
Hamdan
were now clearly and unmistakably barred by the MCA.
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As the Court said, “it is almost as if the proponents of [the statute] were slamming their fists on the table, shouting ‘when we say all, we mean all—without exception!’”
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The Court of Appeals then went on to consider the charge that the statute was unconstitutional as an improper suspension of the writ of habeas corpus. On this question, the Court of Appeals, displaying none of the reticence of the Supreme Court, reiterated the position it had taken earlier: aliens imprisoned at Guantánamo did not enjoy any constitutional rights and thus there could be no objection to denying them access to habeas corpus.

The Court of Appeals was mindful of the anomalous status of Guantánamo as a territory over which the United States has exercised long-term, exclusive jurisdiction and control. Yet it concluded that de facto sovereignty was not sufficient. The Court of Appeals held that for constitutional purposes Guantánamo should be viewed much as we would view a foreign country, not
like one of the states or a territory such as Puerto Rico. By way of support for this proposition, the Court of Appeals pointed to the legislative determination in the Detainee Treatment Act of 2005 that “the United States, when used in a geographic sense . . . does not include the United States Naval Station at Guantánamo Bay, Cuba.”
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Lawyers for the prisoners sought review of the Court of Appeals’ decision. In April 2007 the Supreme Court denied certiorari. The lawyers persisted, however, and filed a motion for a rehearing. In their response to the government’s memorandum and opposition to that motion, they attached an affidavit of a lawyer who, as an army reserve intelligence officer, had served on a Combatant Status Review Tribunal at Guantánamo. This affidavit described the lawyer’s experience on the tribunal and pointed to its gross procedural deficiencies. In June 2007, much to the surprise of Court watchers, the Court reversed itself.
²⁵
It granted the motion for rehearing and the writ of certiorari. In so doing, the Court provided for itself yet a third opportunity to resolve the central question—do the Guantánamo prisoners have any constitutional rights that might be protected by a writ of habeas corpus and, if so, what might they be?—that it had avoided in 2004 and again in 2006.

The Court as the Guardian of the Constitution

The Guantánamo prison was first opened to serve the War on Terror in January 2002. In its 2004 and 2006 decisions, the Court acknowledged that the prisoners had access to habeas corpus but refused to ground its decisions on any constitutional basis. The Court simply held that habeas jurisdiction was established by statute. The 2006 decision also relied on statutory ground in order to set aside Bush’s order establishing military commissions to try Guantánamo prisoners. The Court declined to address
the obvious due process objection to the use of military commissions to try persons who had been in prison for as much as four years, and far beyond any theater of armed combat. We can readily see the costs of such minimalist decisions: the cycles of litigation, the hardship on the prisoners during this period, and the resources consumed by the judicial and legislative branches. But what has been gained?

In a separate and very short concurrence in the 2006
Hamdan
decision, Justice Breyer pointed to a possible answer. Stressing the limited nature of the Court’s decision, he said that the Court had done no more than declare that Congress had failed to grant the president the authority to create the kind of commission at issue in the case, and in fact seemed to deny that authority. “Nothing,” Breyer continued, “prevents the President from returning to Congress to seek the authority he believes necessary.”
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Then, to justify the value of that exercise, Breyer invoked the theme that had been made prominent by the proponents of minimalism and in much of Breyer’s extrajudicial writing: democracy.
²⁷
Judicial insistence that the president turn to Congress and gain its assent would further the democratic purposes of the Constitution.

Such a view ignores the specific democratic system—a presidential one—established by the U.S. Constitution. In a presidential system, there are two mandates from the electorate, one for the president and another for the legislature. Of course, when a measure is endorsed by both the president and the legislature, both mandates are being honored. But to insist on the priority of the decision of the legislature when it conflicts with that of the president or to require congressional authorization to use military commissions is to ignore a distinctive feature of the presidential claim to authority, one that might, seen objectively, give it priority, especially in the context of war: the president speaks for the nation as a whole. Although the members of Congress can
also speak for the nation, they are elected by districts or states and are necessarily responsive to their local constituencies.

Granted, there may be offsetting democratic advantages of the legislative branch. For example, it may be easier for electors to hold individual members of Congress accountable than it is to hold the president accountable. The multitude of representatives in Congress may also make public deliberation more common, though hardly a strong institutional practice, as anyone knows who has witnessed on late-night TV many a legislator making a speech to an almost empty chamber. Account must be taken of the (promised) deliberative character of the legislative process and the ways it facilitates accountability, but the distinct electoral mandate of the president or his claim to democratic authority should not be ignored.

Even more fundamentally, it would be wrong to assume, as the proponents of minimalism do, that the democratic values of the Constitution are furthered by simply enhancing the power of Congress or of the president because of their political character. Democracy is not majoritarianism. Increasing the power of the political branches may enlarge the opportunities for the majority to exercise its will, but it does not ensure that this exercise of will is based on a consideration of all the interests affected or will entail the kind of reflection that makes such exercises of will worthy of our respect. Maybe nothing can ensure such reflection, but a robust use of the judicial power—a strong and unqualified statement of constitutional principle—often provides the foundation for such reflection and in so doing enhances the deliberative character of the majority’s decision.