A War Like No Other (8 page)

In a separate opinion in
Hamdi,
Justice David Souter, joined by Justice Ruth Bader Ginsburg, insisted that the terms of the Non-Detention Act were not satisfied—the statute authorizing the use of military force against terrorism was far too general to count as the requisite statutory authorization for Hamdi’s detention. (Justice Souter also concluded that the 1971 Non-Detention Act governed prisoners taken on the battlefield and did not improperly interfere with the responsibilities of the president as commander in chief.) Yet in the interest of forming a majority, Justice Souter joined Justice O’Connor’s opinion. Justice Souter said that by providing Hamdi with an opportunity to contest the factual predicate of the government’s theory, the plurality’s remand order was “on terms closest to those [he] would impose.”
¹¹
Justice Clarence Thomas embraced the government’s position in its entirety, virtually denying any judicial review of the government’s decision to detain Hamdi indefinitely. Justice Antonin Scalia and Justice John Paul Stevens took the opposite view—because Hamdi was an American citizen, the only options for the government were to prosecute Hamdi in federal court for treason or some other crime or to let him go.
¹²

In the United States and abroad, Justice O’Connor’s opinion
is best known for its statement that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
¹³
In accordance with that aphorism, she did in fact place limits—procedural limits—on the president’s capacity to detain citizens who had been captured on the battlefield and later detained in the United States.
¹⁴
She required that Hamdi be given the opportunity to contest the government’s claim that he was a soldier of the Taliban and thus an enemy combatant. This charge had been supported by an affidavit from the same official in the Department of Defense (Michael Mobbs) who gave the affidavit in
Padilla,
although Hamdi’s father, who had brought this habeas petition on his son’s behalf, denied this allegation and said that his son went to Afghanistan in August 2001 to do relief work.

Justice O’Connor spoke to Hamdi’s particular situation but in effect crafted a more general procedural scheme. With that purpose in mind, she explained that the procedural rights of prisoners held as enemy combatants must be carefully tailored “to alleviate their uncommon potential to burden the executive at a time of ongoing military conflict.”
¹⁵
Accordingly, she allowed the government to support its charge that a prisoner is an enemy combatant by submitting an affidavit based on records maintained by the military of battlefield detainees. Such an affidavit would create a presumption, she said, that the prisoner is an enemy combatant and can be held on that basis. Then the prisoner would be given the opportunity to present evidence to rebut the presumption and to show that he is not an enemy combatant. The standard of proof Justice O’Connor contemplated remains unclear, but she did say that at this hearing Hamdi would have the assistance of counsel.

Justice O’Connor took up the counsel issue at the very end of her opinion. Her entire discussion of this issue amounted to one short paragraph, which followed a sentence that, because of
its emotional tone, reads as though it was to be the conclusion of her opinion. In that sense, the counsel paragraph seems like a postscript—as though all the hard issues had already been resolved. Most of the paragraph is devoted to explaining why the right to counsel issue is moot: although Hamdi was denied access to counsel—or, for that matter, access to anyone at all—for a period of almost two years, following the grant of certiorari the government allowed Hamdi to meet with counsel without conceding any obligation to do so. Then this sentence appears, without any elaboration whatsoever: “He unquestionably has the right to access to counsel in connection with the proceedings on remand.”
¹⁶

A casual reader might think that the sentence was purely descriptive of Hamdi’s situation and that the right to counsel to which Justice O’Connor referred might be the right the government already allowed him as a discretionary matter. On reflection, however, it may well be that this “right” to counsel applies more generally and has constitutional roots, not in the Sixth Amendment, which only applies to criminal prosecutions, but in the Due Process Clause of the Fifth Amendment. The remand required the concurrence of Justice Souter, and he spoke of the plurality’s “affirmation” of Hamdi’s right to counsel.
¹⁷
I therefore assume that Justice O’Connor and the three other justices who joined her opinion intended to avoid a ruling on the right to counsel issue but that they added the crucial sentence at the very last moment to secure Justice Souter’s and Justice Ginsburg’s votes.

Bargaining among the justices had a less felicitous outcome with respect to the nature of the tribunal that could determine whether Hamdi is an enemy combatant. Throughout her opinion, Justice O’Connor made it clear that the hearing must be held before “a neutral decision maker”
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or “an impartial adjudicator.”
¹⁹

Clearly, that standard would be satisfied by a federal district court passing on an application for habeas corpus. Indeed, the case before the Supreme Court had begun in such a manner—Yaser Hamdi’s father acting as next friend filed a habeas petition in the federal district court with jurisdiction over the Norfolk brig. But Justice O’Connor created another alternative: a hearing before a military tribunal that would not be a prelude but rather a substitute for the hearing on the habeas petition in the federal district court. She wrote: “There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal.”
²⁰
She could not, however, obtain a fifth vote for this proposition. Justice Souter was explicit that in joining Justice O’Connor’s plurality opinion he did not mean to imply “that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas.”
²¹

Doubts can, of course, be raised as to whether a military tribunal can ever, no matter how it is constituted, have the “neutrality” or “impartiality” that fair procedure requires. After all, it is an act of the military that must be judged, and a military tribunal is, as the name implies, staffed by members of the military. But Justice O’Connor’s proposal—and that is all it is—can be faulted on more basic grounds. She did not fully grasp the significance of the issue to be resolved by the tribunal. The narrow technical issue is, as she said, whether the government made a mistake in classifying Hamdi as an enemy combatant. Yet the stakes are much greater than she allowed, because the classification of Hamdi as an enemy combatant was the basis for depriving him of the freedom that the Constitution guarantees. It was the basis for allowing the government to incarcerate him.

Accordingly, Hamdi’s claim that he was not an enemy combatant should have been tried by a federal court, not simply because such a court can achieve a measure of neutrality
unavailable to a military tribunal but also and more fundamentally because under our constitutional scheme it is the federal judiciary that has the responsibility of determining whether some individual has been deprived of a constitutionally guaranteed right, like the right to freedom. Federal judges are nominated by the president and confirmed by the Senate, and under our constitutional scheme are endowed with the authority to speak for the nation on the meaning of the Constitution.

The root of Justice O’Connor’s error is clear. Much to the surprise of everyone, including the lawyers on both sides and some of her colleagues, she applied the
Matthews v. Eldridge
²²
formula to determine Hamdi’s procedural rights. This formula was devised in the mid-1970s to determine whether an individual faced with the termination of welfare or disability benefits is, as a matter of due process, entitled to a hearing and what the character of that hearing must be. This formula requires a consideration of the benefits and costs of the proposed procedures and conceives of procedure as an instrument to arrive at correct decisions.
²³
Although this formula has not been applied to require an evidentiary hearing for the termination of welfare benefits, it has always been assumed that if a hearing were required before benefits were terminated, that hearing need not be held before a federal judge. A supervisor in the welfare department would not suffice as a decision maker, because such an official would not possess the neutrality that fair procedure requires, but the hearing could be held before a member of the state civil service.
²⁴
In the case of Yaser Hamdi, however, the issue is entirely different from that presented in
Matthews v. Eldridge:
not the fairness of a procedure to determine whether the state was correctly classifying the individual as it did but, rather, whether the prisoner is entitled to the substantive right to freedom guaranteed by the Constitution.

In saying this, I am not faulting Justice O’Connor, as some
have, for conflating property and liberty. She understood that what is at stake is not a welfare check, disability benefits, or some other form of property but Hamdi’s liberty. Her error was to ignore the distinction between two types of liberties: those that are guaranteed by the Constitution itself—as, for example, by the First Amendment or by what I have called the principle of freedom—and those liberties that people enjoy in society but which are not constitutionally protected (one type of liberty can be called a constitutional liberty, the other a personal or social liberty).

A liberty of the latter type might be the liberty a parent has with respect to the control of his or her children. The Supreme Court had previously used the
Matthews v. Eldridge
formula to determine what procedures should be applied to deprive a person of such a personal liberty, as in
Lassiter v. Dept. of Soc. Servs. of Durham County.
²⁵
Although I disagree with the result in that case—appointed counsel need not be provided to an indigent person whose parental rights are to be terminated—I acknowledge the applicability of the formula. Similarly, I would say that if all that were involved in Hamdi’s case were a personal liberty, the
Matthews v. Eldridge
formula would be applicable, and from that perspective a hearing before a military tribunal might suffice, once again assuming that the tribunal possessed the requisite impartiality. The formula requires only fair procedures.

But for liberties of the first type—liberties guaranteed by the Constitution itself—the individual is entitled to a hearing before a federal court on his or her claim. Imagine a tenured professor being fired by a state university for criticizing some public official. He can challenge that action as a violation of the First Amendment and is entitled to have that claim judged by a federal court and not simply by some administrative tribunal within the university structure.
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He is entitled to something more than fair procedure. Likewise, I maintain that Hamdi was entitled
to a hearing before a federal court, not a military tribunal, on his claim that he was being denied the liberty provided by the principle of freedom—a liberty that can be traced to the Due Process Clause of the Fifth Amendment, read in its substantive guise, and the provision of Article I limiting the suspension of the writ of habeas corpus.
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The Uncertain Reach of the Constitution

The Supreme Court’s failure in
Hamdi
is important but measured. Although the Court did not require a hearing before a federal court and thus did not honor the principle of freedom, it at least granted the prisoner some rights—an evidentiary hearing on the government’s contention that he was an enemy combatant and access to counsel for such a hearing. The Court must also be credited for grounding these rights in the Due Process Clause, unfortunately misunderstood by the Court as a requirement of procedural fairness, not as a substantive guarantee of liberty. In the third decision handed down on June 28, 2004,
Rasul v. Bush,
the Supreme Court also granted procedural rights to prisoners captured in the theater of war and accused of having fought for the Taliban, but these rights were even more limited than those recognized in Hamdi.

Although the
Rasul
Court ruled that the prisoners had a right to file a habeas application in a federal district court and to require a response by the government, it did not specify what further rights—procedural or substantive—they had before that court. Even more significant, the Court grounded the limited right it did provide in the federal habeas statute, not the Constitution, and left uncertain whether the prisoners had any constitutional rights that might be vindicated in the habeas proceeding it allowed. The Court simply granted the prisoners the right to file a piece of paper.

The first and most crucial difference between
Hamdi
and
Rasul
is that, unlike Yaser Hamdi, the prisoners in
Rasul
were not American citizens. Two were Australians and twelve were Kuwaitis (at one point, two British citizens were involved in the litigation, but due to intense diplomatic pressure they were released after the grant of certiorari). All the prisoners denied that they took up arms against the United States and insisted that they were in the region for personal or humanitarian reasons. The second difference, which becomes of constitutional significance only because of the first difference, is that they were not held in Charleston or Norfolk but were moved from the battlefield to the Guantánamo Naval Station and imprisoned there.

The federal habeas statute (28 U.S.C. § 2241) provides that the district courts can grant habeas petitions only “within their respective jurisdictions.” In
Rasul,
the government argued that this statutory language means that a district court can hear habeas petitions only from prisoners being held within its jurisdiction, and that because the prisoners were being held at Guantánamo they were not within the jurisdiction of the federal district court in which the habeas petition had been filed (the District of Columbia), nor, indeed, the jurisdiction of any district court. The Supreme Court, in an opinion by Justice Stevens, rejected this argument and established the following scheme for § 2241: prisoners being held within the jurisdiction of a district court must apply for the habeas writ within the jurisdiction of that court. However, prisoners held outside the jurisdiction of any district court, such as those held in Guantánamo, can apply for a writ from any district court that has jurisdiction over their custodian.