Making Our Democracy Work (31 page)

Might the Court have found a workable way to hold the president constitutionally accountable? Perhaps it could have developed a sliding
scale in respect to the length of detention and the intensity of its examination of the circumstances. Perhaps it could have insisted that the government increase screening efforts the longer an individual is held in detention. Perhaps it could have required the government to have had in place from the beginning a plan for future screening. Perhaps it could have deemed critical the fact that the relocation was imposed within the United States itself during a period not of martial law but when ordinary civilian courts were fully operative. Perhaps, by focusing directly on these or similar possibilities, the Court might have written a legal rule that structured judicial review of military actions—ideally a rule that steered between burdensome, case-by-case judicial review and no review at all.

As it was, the Court majority understood the danger of excessive judicial interference in military affairs, but it did not satisfactorily address the problem of insufficient judicial involvement. If it had focused on the latter problem—telling the president even in wartime that the sky is not the limit—it might have found a way to maintain presidential accountability without undermining the president’s need for broad discretionary wartime powers. Its mistake was focusing too heavily on the former.

W
HAT HARM DID
the
Korematsu
decision actually cause? The decision itself hurt the interned Japanese by validating their internment. It also affirmed Fred Korematsu’s criminal conviction. The War Relocation Authority mitigated the harm to some degree when, the day before the Court announced its
Korematsu
and
Endo
decisions, it stated with unconscious irony that as of January 2, 1945, all “persons of Japanese ancestry whose records have stood the test of Army scrutiny” would be “permitted the same freedom of movement throughout the United States as other loyal citizens and law-abiding aliens.”
⁵⁸

Fred Korematsu returned to the Bay Area, where he became a successful engineer and landscape architect. Eventually, a federal district court in San Francisco voided his original conviction. And the nation apologized, and in 1988 provided some monetary compensation, to those whom it had interned.
⁵⁹

History did not bear out Justice Jackson’s prediction that the decision would create a bad legal precedent, a precedent that would lie in wait “like a loaded weapon” waiting to justify a future abusive act. The decision has been so thoroughly discredited that it is hard to conceive of any future Court referring to it favorably or relying on it.
Korematsu’s
impact as precedent likely consists of what it failed to do: make clear that there are at least some actions that the Constitution forbids presidents and their military delegates to take, even in wartime.
⁶⁰

Korematsu
harmed the Court. It suggested that the Court was unwilling or unable to make an unpopular decision that would protect an unpopular minority. This suggests a failure to carry out what Hamilton saw as a primary function of the Court’s exercise of judicial review. In general, the Court’s ruling in this case has gone down as a judicial failure.
Korematsu
shows the practical need for the Court to assure constitutional accountability, even of the president and even in time of war or national emergency.

T
HE
S
EPTEMBER
2001 terrorist attacks on the United States led to a war in Afghanistan, which was accused of harboring the terrorists who planned the attacks. It also led to the capture of suspected terrorists and terrorist sympathizers, the incarceration of several hundred suspected Al Qaeda or Taliban members and supporters at Guantánamo Bay, Cuba, and court cases growing out of that confinement. Between 2003 and 2007 the Court decided four of those cases. They involved detained persons who sought writs of habeas corpus to secure their release and raised questions involving the liberty of terrorist suspects and national security needs. They required the Court to consider its relationships with Congress and the president when security is at risk. And they presented the Court with a challenge similar to that presented in
Korematsu
. Is there a workable legal approach that can help the Court ensure constitutional fidelity when national security is endangered? I believe the Court adopted a more workable approach than in
Korematsu
, but history will ultimately decide whether the Court met that challenge appropriately. Here I can simply describe what the Court did, while emphasizing the Court’s role in helping to make the Constitution work.

The basic facts are well-known. On September 11, 2001, Al Qaeda terrorists hijacked four commercial airliners and used them to destroy the World Trade Center and demolish a portion of the Pentagon. (Passengers brought down in Pennsylvania a fourth plane believed to be on
its way to Capitol Hill.) The terrorist attacks killed approximately three thousand people, injured many thousands of others, and destroyed billions of dollars’ worth of property. At the request of President Bush, Congress immediately authorized him to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons.” The president sent American troops to Afghanistan to fight against that country’s Taliban government as well as the Al Qaeda forces that the government had harbored.
¹

During the next several years American and allied forces captured and screened more than 10,000 suspected Al Qaeda or Taliban members. They sent about 750 individuals to the American naval base at Guantánamo Bay, Cuba. Most of those confined were citizens of Afghanistan, Saudi Arabia, or Yemen, and the rest came from among thirty different countries. In the early years most detainees were fighters from countries other than Afghanistan, and about one-third were Al Qaeda leaders or operatives. Many of those originally confined were released. In later years the population consisted primarily of Al Qaeda and Taliban leaders and operatives.
²

As of late 2004 the government had freed or released to the care of other governments about 200 individuals, and about 550 remained in custody. As of late 2008 the number in custody had fallen to about 260, including 27 Al Qaeda leaders, 99 lower-level Al Qaeda operatives, 9 Taliban leaders, 14 lower-level Taliban operatives, 93 foreign fighters, and several others.
³

Defense Department reports state that the inmates were initially housed in Camp X-Ray, a “spartan” facility with “simple” plywood interrogation rooms, built in the 1990s to house Cuban and Haitian refugees. Because of Camp X-Ray’s “limited capacity and primitive conditions,” military authorities soon built another facility, Camp Delta, which housed about six hundred detainees. Eventually, the authorities built a third “maximum security” facility, Camp 5, with room for about a hundred of “the most uncooperative individuals.” Most detainees remained in custody for two to four years. About 10 percent were confined more than five years.
⁴

A Defense Department document also explains why the department
chose Guantánamo as a place for interrogation and confinement. Guantánamo was near the United States and under U.S. control. It also was secure and far from the Afghanistan battlefields. And most important, it “was considered a place where these benefits could be realized without the detainees having the opportunity to contest their detention in the U.S. courts.”
⁵

Guantánamo’s inmates, aided by attorneys working free of charge, soon began to challenge this last assumption. The Defense Department did not permit any direct contact with the inmates, nor did it provide them with legal counsel, but it did release their identities. Civil rights groups and others then asked the detainees’ friends or relatives to bring a lawsuit, under a law that permitted a suit on behalf of an individual held in custody, that is, as a “next friend.” With legal representation provided by the interested groups, “next friends” brought petitions for writs of habeas corpus in the federal courts, claiming that the Constitution or laws of the United States entitled the inmate to release. Did the law permit such an inmate to file such a petition? If so, did it entitle the inmate to release? Four cases presenting these or similar questions made their way to the Supreme Court. (I joined the majority or plurality in all of these cases.)

S
HAFIQ
R
ASUL, ELEVEN
other Kuwaitis, and two Australians, all detained at Guantánamo, were the petitioners in the first case,
Rasul v. Bush
, which the Court decided in June 2004. Although the Defense Department said they were enemy combatants captured during fighting in Afghanistan, they argued that they were humanitarian aid workers who had been taken prisoner by mistake. They asked the federal district court to issue writs of habeas corpus requiring the Defense Department to release them or at least give them a better opportunity to prove they were not combatants. The question for the Court was whether a civilian court could even consider a Guantánamo prisoner’s claim that the government was confining him unlawfully.
⁶

The writ of habeas corpus provides a bedrock protection for an individual’s freedom. The writ originated in England more than four
hundred years ago and allows a court to review an individual’s claim that the government, then the king, is confining that individual without the legal authority to do so. The Constitution underlines the importance of the writ by stating that the “privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The first Congress that met after the adoption of the Constitution enacted laws authorizing courts to issue writs of habeas corpus. The statute books have contained laws of this kind ever since.
⁷

The
Rasul
case asked whether a civilian court has the power to issue a writ of habeas corpus on behalf of a Guantánamo prisoner. If not, neither the Supreme Court nor any lower civilian court could even consider the prisoners’ claims of unlawful detention. The answer to the question turned on what seem highly technical matters. The congressional habeas corpus statute said that writs of habeas corpus “may be granted” by justices of the Supreme Court, by individual district courts, and by individual circuit judges,
“within their respective jurisdictions.”
⁸

These last four words make clear that a particular judge can issue a writ only within a particular geographic area. The word “jurisdiction” suggests that the area in question is one where the judge’s court ordinarily exercises binding legal authority, say Washington, D.C., in the case of the federal district judge in question. How do these words apply when, as in the
Rasul
situation, the imprisoned person is held at Guantánamo Bay, but the jailer, namely, the government, operates, and is subject to being sued, within Washington, D.C.? Does the statute authorize a judge in Washington, D.C., to issue a writ on behalf of such a person, a person held by the military outside the United States?

Because the wording of the habeas corpus statute does not answer this question, the Court had to look elsewhere, and it found conflicting cases. On the one hand, several earlier cases suggested that the place that mattered was the place where the detained person was held, that is, Guantánamo, not the place where the government might be found, that is, Washington, D.C. Just after World War II the Court held in
Johnson v. Eisentrager
that federal courts did not have jurisdiction to consider the habeas corpus petitions filed in the United States by several German citizens who had been captured and were being held
abroad. American forces had captured the Germans in China, and a military tribunal in Nanking had convicted them of war crimes. They were imprisoned in Germany at a prison managed by Allied forces, including Americans. When the Court decided that a court within the United States could not consider their habeas petitions, it referred to all these circumstances. It pointed out that the prisoner was an enemy alien who had never been to the United States. He had been captured abroad by military forces and convicted abroad of crimes committed outside the United States. And he was imprisoned outside the United States. In
Rasul
the government relied on this case. But after
Eisentrager
the Court decided another case in which it held that a Kentucky federal court could consider a habeas petition filed by a prisoner confined in a prison in Alabama. The Guantánamo petitioners relied on this case, arguing further that in the earlier case,
Eisentrager
, the court had based its conclusion on the presence of several factors, two of which were absent here. First, the Guantánamo petitioners had not been convicted of war crimes. Second, they were not being held
outside the United States
. Guantánamo, they said, was part of the United States.
⁹

The Supreme Court agreed with this last argument. It held in
Rasul
that the prisoners could file their habeas petitions because for all practical purposes Guantánamo was part of the United States. The United States had leased Guantánamo from Cuba in 1903. But, as Justice Anthony Kennedy observed in a concurrence, the “lease is no ordinary lease.” Although the lease says that Cuba retains “ultimate sovereignty,” its term is “indefinite,” and the lease cannot be abrogated unless the United States stops using Guantánamo as a naval base or otherwise consents to the abrogation. As long as the United States is present, the base is totally subject to American, and only to American, law.
¹⁰