Bringing the Nation Back on Track


They had to grab the wheel. In its blockbuster enemy-combatant decisions last week, the Supreme Court steered a swerving nation back on its original course. No shortcuts in America, the justices admonished the president—here, the right way is sometimes the rockiest.

In cases that posed the greatest test to national ideals since the 2001 terrorist attacks, the Court took a path that ultimately was its only choice. Against the Bush administration’s vehement objections, it ordered that Yaser Hamdi—a U.S. citizen held incommunicado by the military since January 2002, allegedly for fighting on behalf of the Taliban—be allowed to contest his “enemy combatant” status or go free. And it opened the U.S. courts to some 600 alleged foreign aggressors detained at the U.S. naval base at Guantánamo Bay, Cuba, who would otherwise have no forum in which to proclaim their innocence or protest their treatment.

It may not have been immediately obvious why the country’s destiny hinged on the right of a bunch of alleged terrorist sympathizers to challenge their indefinite detentions under President Bush’s command. But to appreciate the necessity, one only had to imagine a world where the justices had gone the other way. Today the president would be able to lock up anyone he wanted, for as long as he wanted, until he decided the threat of terrorism was over for good.

It turned out that only Justice Clarence Thomas wanted to live in that world. His eight colleagues instead placed their faith not in George W. Bush, but in liberty and due process—the fundamental values that have kept this democracy on track through various presidents, wars, and justices. The Rehnquist Court’s wholehearted embrace of these essentials revealed just how far toward the edge the administration had veered: so zealous in waging the war on terrorism that it would risk sacrificing the soul of the cause.

“It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad,” Justice Sandra Day O’Connor wrote in the most influential opinion of the day, granting Hamdi a chance to argue that the government had put away the wrong man. A bare majority of the Court sided with the Bush administration on one point—that the president had the authority, based on a September 2001 decision of Congress, to detain enemy combatants as he saw fit. But only, all the justices but Thomas declared, if the captives met a formal definition of “enemy combatants.”

The administration had insisted that the commander in chief’s mere promise of sound judgment—and no process of proof—was all that should be required to detain citizens and noncitizens, incommunicado and indefinitely, as enemy combatants.

The Court’s requirement of basic fairness carried over to the decision providing due process rights to the foreign nationals detained at Guantánamo Bay. Although the case of Jose Padilla—the other U.S. citizen currently held by the military as an enemy combatant—was sent back to square one on a technicality, the Hamdi decision suggested Padilla would also receive procedural rights at some point.

The Court sought to convince the Bush administration that American justice has as much to do with principle as with force. But the executive branch resisted.

“We respect the Court, but obviously we disagree with the findings to some extent,” said Justice Department spokesman Mark Corallo last week in an interview. Government lawyers were combing the opinions to discern how little they could change in their detention policies and still comply with the rulings. Dismissing the notion that the president might regret having taken such a hard line on individual rights, Corallo said, “We looked at the issues, and we took a stance. This is a war.”

This trench talk makes the Court’s decision, to stick by “the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law,” seem that much more courageous. After all, should Hamdi or someone like him be released and cause harm, it is certain that many will pin the blame on the Court.

The justices stressed that they were battling a different kind of harm. “[A]s critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security . . . an unchecked system of detention carries the potential to become a means for oppression and abuse,” warned O’Connor, joined by Chief Justice William Rehnquist and justices Anthony Kennedy and Stephen Breyer. Raising the specter of presidential tyranny, they emphasized that “the position that the courts must forgo any examination of the individual case . . . serves only to condense power into a single branch of government.”

Court watchers had predicted some chest-puffing, simply given the reputation of these particular justices for institutional pride. But, said Laurence Tribe, Harvard constitutional law expert, “The Court goes much further than saying the judiciary must have the last word—saying that, in the face of the strongest possible set of claims on the part of the executive, in circumstances with an unconventional enemy, we still have to stand up for the rule of law.”

Refusing to take the president’s word for it, O’Connor said that “the circumstances surrounding Hamdi’s seizure cannot in any way be characterized as ‘undisputed.’ ” The government claims the detainee was caught fighting for the Taliban in Afghanistan and was moved by allies into U.S. custody. Hamdi’s father contends that the then 20-year-old had traveled abroad alone for the first time, on a humanitarian mission, and likely fell into the clutches of local bounty hunters.

Bush’s lawyer gave the Court this answer to the factual ambiguity, at oral argument in April: “It may not seem what you think of as traditional due process . . . but the interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake.” It is impossible to know how much subsequent revelations in the U.S. military torture scandal influenced the justices, but the majority found the administration’s version of a fair hearing utterly lacking. “An interrogation by one’s captor . . . hardly constitutes a constitutionally adequate factfinding,” wrote O’Connor.

According to Tribe, “When they hear an argument in the morning where the executive branch says, ‘Trust me,’ and then they hear on the evening news to the contrary, no justice can reasonably say they are unaffected by that.”

In the Hamdi case, the Court left the precise details of a fair process for the lower courts to decide, stopping well short of requiring the heightened protections of a standard criminal proceeding. But it mandated the basic elements: “a meaningful opportunity” to contest the government’s story before a “neutral decisionmaker.”

Even the Court’s nod to the administration on its authority to hold Hamdi—if he is in fact found to be an “enemy combatant”—was less a salute to the executive’s prerogatives than an acknowledgement of the democratic will. Declining to find unilateral, prolonged detention among the inherent powers of the president, the Court held instead that a congressional resolution of September 18, 2001, had authorized the president to use detention as part of the “necessary and appropriate force” in defeating terrorists.

Narrowing still further, the Court defined “enemy combatant” in its Hamdi ruling quite specifically: “individuals legitimately determined to be Taliban combatants who ‘engaged in an armed conflict against the United States’ . . . captured in a foreign combat zone.” The category seemed to exclude citizens detained on U.S. soil.

And even when legitimate, O’Connor stressed, the president’s authority to detain enemy combatants is not without an endpoint. “If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding [of executive detention authority] may unravel.”

Padilla, known as the “dirty bomber,” was arrested by the FBI in Chicago in May 2002 and then moved to New York, originally as a witness in a radioactive-attack plot. He was moved again, to the same South Carolina navy brig as Hamdi, where he will have to wait longer for his day in court. A 5-4 majority, led by Chief Justice Rehnquist, refused to address Padilla’s substantive claim of illegal, incommunicado detention last week, because of a technical mistake in the complaint. The Court said Padilla’s lawyers would have to refile the challenge in a federal court in South Carolina, not New York. The lawyers plan to do so within the next two weeks and are optimistic about Padilla’s hopes of challenging the government’s allegations before a neutral party, given that Hamdi—captured, allegedly armed, on a foreign battlefield—was granted at least that much.

Indeed, four justices dissented passionately from the majority’s decision to avoid Padilla’s constitutional claims on a technicality. “At stake in this case is nothing less than the essence of a free society,” wrote Justice John Paul Stevens. Even the technical ruling permitted too much, he insisted, arguing that the majority was essentially legitimating the military’s “secret transfer” of a U.S. citizen in order to “obtain a tactical advantage.”

Stevens’s concern did not seem too exaggerated, considering an exchange between the Court and Bush’s lawyer at oral argument in the case in April. The Court asked, “So what is it that would be a check against torture? . . . What’s constraining? . . . Is it just up to the goodwill of the executive?” The administration answered, “The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority.”

The possibility of abuse in executive discretion took on new urgency in the months following that conversation, as allegations of systemized torture arose regarding U.S. military prisons in Iraq. The Court’s 6-3 ruling last week in favor of letting some 600 noncitizens at the Cuban base challenge the factual basis for their detentions may reflect a heightened unease over the administration’s credibility. Moreover, defense officials have admitted, most prominently in a recent New York Times report, that initial screenings of the detainees were far from precise, and that interrogations have been amateurish and disorganized.

Until the ruling last week, the Guantánamo captives lay beyond the reach of any justice system in the world, a state of lawlessness that the administration strenuously advocated. But the six-justice majority tossed aside the president’s contorted argument that because the land is technically part of Cuba, the U.S. military cannot be said to hold sovereign power. The U.S. wields “exclusive jurisdiction and control” there, the justices pointed out, and that is enough to have to answer for the ongoing detentions.

Although legal observers on both sides of the argument had fretted over the distinction—or lack thereof—between the rights of citizens and noncitizens, the Court ultimately found a way to promote fairness as a basic human value. It left the details of new procedures to the executive, but it left no doubt as to the shift in principles that would be required from now on.

None of the justices disputed that the commander in chief should wield extraordinary power in a time of war and terrorism. But in nearly one voice, they urged that a democracy depends not just on the strength of its leader, but on a system that holds that leader accountable to the principles of the people.

Research assistance: Alexander Provan