TCS Daily

The Radical Center Holds

By Michael Rosen - July 23, 2004 12:00 AM

In constitutional law, sometimes a balanced, middle ground approach can be both innovative and prudent. In Hamdi v. Rumsfeld, a four-justice plurality of the U.S. Supreme Court ruled that detention of American citizens by the federal government as "enemy combatants" is subject to some minimal form of judicial review. Justices Antonin Scalia and Clarence Thomas authored vigorous dissents, the former rejecting and the latter sanctioning such detention. Although the two dissents ultimately emerge on diametrically opposed sides of the question, they are remarkably similar in crucial respects. The dissents are also elegant, thorough, sensitive -- and ultimately unsatisfying. Instead, the plurality's radical and creative middle ground, redolent as it is of judicial activism, offers the best approximation of the balance the government must strike between securing American lives and freedoms.

Yaser Esam Hamdi, the source of the controversy, is an American citizen whom the Northern Alliance apparently captured with a unit of the Taliban during combat in Afghanistan sometime in 2001 before turning him over to American custody. His habeas corpus petition reached the Supreme Court where four justices ruled that the executive branch had the authority to detain Hamdi as an enemy combatant but that he enjoyed the right to a limited hearing on the facts underlying his status.

In dissent, Justice Scalia, in a rare alliance with Justice Stevens, begins by reviewing English and American common law and concludes that the government must either try an enemy combatant for treason or obtain a suspension of the writ of habeas corpus from Congress. Scalia, a constitutional formalist, rejects the government's argument that the Congressional Authorization for Use of Military Force (AUMF), passed in the wake of the 9/11 attacks, justifies detaining American citizens absent suspension of habeas. This sentiment is echoed by libertarian conservatives like William Safire who sought, in a recent New York Times column, to "extend habeas corpus to all four corners of the earth." More importantly, Scalia deplores the court's "Mr. Fix-it Mentality" in claiming the prerogative of designing a process for detainees short of habeas relief; Congress, not the courts, should be fashioning such remedies.

Yet Scalia's suggested alternatives to indefinite detention fail to capture the nuance of the war against terror. Charging enemy combatants with treason, as Justice Thomas notes, would likely trigger the entire suite of constitutional trial rights including expansive discovery, through which the accused would be entitled to review highly sensitive intelligence. And a suspension by Congress of the writ of habeas corpus, as Justice Thomas observes, is a blunt instrument that subverts the spirit of constitutionalism entirely. According to the Constitution, Congress may suspend habeas only "when in Cases of Rebellion or Invasion the public Safety may require it"; the diffuse nature of the present terrorist threat would hardly seem to warrant depriving all Americans of habeas relief.

Instead, Justice Thomas labors to justify indefinite detention as an inherent component of the executive's war-making power. Thomas makes generous use of the Federalist Papers to demonstrate not only that the executive enjoys the power, capacity, and expertise required to classify and detain enemy combatants but also that the judiciary lacks the same. Thomas is well aware that Justice Scalia shares the latter opinion and to this end Thomas quotes his colleague as saying, in an earlier case, that "[e]ven the ancient Israelites eventually realized the shortcomings of judicial commanders-in-chief."

Thomas asserts that detention such as Hamdi's does not reflect the civilian imprisonment goals of punishment and rehabilitation but instead the military imperatives of interrogation and prevention of further hostilities. Indeed, recent news reports indicate that several prisoners released from Guantanamo have returned to undisclosed battlefields to do battle with American forces.

Thomas also reduces the plurality's opinion to an absurdity: if the military may not even detain an enemy combatant without minimal judicial process, how can it arrogate to itself the right to shoot, bomb, and kill the enemy without first consulting a judge? Here, though, Justice Thomas disregards the muddy but important distinction between the immediate exigencies of the battlefield and the deliberate, lengthy nature of detention.

Furthermore, even detention for the purposes of intelligence-gathering and isolation from the battlefield implicates the fundamental freedoms of American citizens. After all, if executive say-so suffices to detain anyone the government chooses to classify as an enemy combatant, there exists literally nothing, other than the good faith of the executive branch, to prevent the government from tagging perfectly innocent parties as enemies.

More striking than the various shortcomings of Justices Thomas' and Scalia's dissents, however, is the common ground the two find in denigrating the court's "Mr. Fix-It" attitude. Sure enough, the court's plurality opinion boldly establishes a procedure that involves the judiciary in the detention process. The plurality sidesteps some of the most pressing constitutional questions by interpreting the AUMF as explicitly authorizing Hamdi's detention. In their words, detaining individuals like Hamdi while hostilities are ongoing in Afghanistan amounts to "so fundamental and accepted an incident to war" as to fall within Congress' instructions to the President to use all "necessary and appropriate force" to win the war against terror. Yet the court also borrows a balancing test from a disability benefits case, weighs minimal due process and liberty interests against government interests, and requires the government to provide a combatant with a fair opportunity to rebut its factual charges before a neutral decision-maker. For the purposes of these hearings, however, the plurality relaxed the prohibition on hearsay evidence and the presumption of innocence, both hallmarks of the civilian criminal justice system.

The court has therefore begun to sketch the contours of a process that has increasingly become necessary in order to carefully balance our overriding security needs against the most basic rights deserved by detained American citizens. Any American detained by the executive branch should be entitled to some kind of hearing in front of some kind of person sitting behind some kind of bench, however limited the hearing, the person, and the bench may be. The court's definition of such a process is admittedly ambiguous and general. Yet it represents a first step in ensuring the protection of both our safety and our liberty.

But what of Scalia's and Thomas' "Mr. Fix-It" objection? Why should the judiciary insinuate itself into a debate that the executive and legislative should properly be holding? Simple: because in nearly three years, neither Congress nor the White House has taken any significant action in this area. While Congress has passed the Patriot Act, and while the White House has prosecuted two wars, neither branch has adequately considered what kind of process to provide to those captured on the battlefields of the war on terror. To be sure, this question presents issues of the greatest political delicacy at home and abroad. And precisely for this reason, the court's bold foray in Hamdi provides effective political cover for Congress to legislate, and for the executive to implement, a scheme of minimal protections for enemy combatants, at least of American citizenship. While Scalia argues that court action encourages governmental lassitude and "saps the vitality" of the legislative process, the Hamdi plurality's scheme in fact offers the other branches a golden opportunity to make difficult political choices under the shelter of Supreme Court approval.

Exactly what choices will be made remains an open question. Many commentators, including Safire, have opined that the government should employ military tribunals to prosecute and detain enemy combatants, procedures that would offer the government's evidence a rebuttable presumption of truth and would screen the detainees from access to sensitive information. The Hamdi plurality recognizes such tribunals as an appropriate possibility. Something along these lines will ensure adequate balance between security and liberty and between executive discretion and impartial judicial review. In the words of Blackstone, the English legal historian quoted in Scalia's dissent, through these limited measures "the nation parts with it[s] liberty for a while, in order to preserve it forever." The "Hamdi four" offer a radically common-sense version of this balance, bracketed by the eloquent if one-sided dissents of Scalia and Thomas.

Michael M. Rosen, an attorney in San Diego, taught in Harvard's Government Department from 2001-2003.


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