Judicial Review and the MCA: On Striking the Right Balance

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Judicial Review and the MCA: On Striking the Right Balance David A. Martin ∗

∗

University of Virginia School of Law, [email protected] This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://law.bepress.com/uvalwps/uva publiclaw/art70 c Copyright 2007 by the author.

Judicial Review and the MCA: On Striking the Right Balance David A. Martin

Abstract

Hamdan v. Rumsfeld seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the U.S. Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy – President Bush’s unilateral establishment of military commissions to try terrorist suspects using reduced procedures – and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA), came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantanamo and at other U.S. detention sites overseas, it limits certain key protections available to the accused in a military commission proceeding, as compared to courts martial, and it takes a crabbed view of the requirements of common article 3 of the Geneva Conventions – at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible – and highly desirable. I analyze here the contours of Hamdan’s remand to Congress, the strengths and weaknesses of that judicial technique, and the political dynamics that led to the MCA. I call attention to certain important gains to rights protections that the present legislation represents, for it does affirm a judicial role in two deeply important arenas from which the Bush administration initially sought to exclude the federal courts entirely – military commission trials and the process of designating enemy combatants for indefinite detention. But there are still lingering deficiencies, some of considerable significance. I conclude by exploring a few questions that must be resolved in order to yield an appropriate judicial role regarding detainees in the struggle against terrorism. Though most of my discussion focuses on U.S. law and practice, the same tension between effective military response to

terrorism and the need for sound judicial checks and balances must be worked out under international human rights provisions.

Draft 6/3/07 – subject to editorial changes before final publication

Agora: The Military Commissions Act American Journal of International Law, vol. 101 (forthcoming 2007) Judicial Review and the MCA: On Striking the Right Balance David A. Martin Warner-Booker Distinguished Professor of International Law University of Virginia Hamdan v. Rumsfeld1 seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the U.S. Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy – President Bush’s unilateral establishment of military commissions to try terrorist suspects using reduced procedures – and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA),2 came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantanamo and at other U.S. detention sites overseas, it limits certain key protections available to the accused in a military commission proceeding, as compared to courts martial, and it takes a crabbed view of the requirements of common article 3 of the Geneva Conventions – at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible – and highly desirable. I analyze here the contours of Hamdan’s remand to Congress, the strengths and weaknesses of that judicial technique, and the political dynamics that led to the MCA. I call attention to certain important gains to rights protections that the present legislation represents, for it does affirm a judicial role in two deeply important arenas from which the Bush administration initially sought to exclude the federal courts entirely – military commission trials and the process of designating enemy combatants for indefinite detention. But there are still lingering deficiencies, some of considerable significance. I conclude by exploring a few questions that must be resolved in order to yield an appropriate judicial role regarding detainees in the struggle against terrorism. Though most of my discussion focuses on U.S. law and practice, the same tension between effective military response to terrorism and the need for sound judicial checks and balances must be worked out under international human rights provisions.

1

126 S.Ct. 2749 (2006).

2

Military Commissions Act of 2006, Pub.L.No. 109-366, 120 Stat. 2600 (to be codified at 10 U.S.C. §§ 948a-950w and other sections of titles 10, 18, 28, and 42) [hereinafter MCA].

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I. Judicial Avoidance Devices and Remands to Congress A. Background Rights advocates often favor legal arguments based on entrenched law, immune to easy legislative change, and press judges to rely on such sources – constitutions and in some instances treaties – in deciding major public controversies. A wider domain for law and narrower scope for policy or discretion seems to be the objective. The operative image is of judges who rise above crass short-term political maneuvering, employ reason rather than a politician’s calculation to achieve the proper result, and anchor the precedent in the bedrock of constitution or treaty so that it controls even when new storms arise or political winds shift direction. This is a powerful and attractive image, and it carries enough truth to have sustained judicially-tended rightsprotecting regimes that have served many democracies well. But it is not the whole story. Not all issues lend themselves to clear legal answers, now and for all time. Sometimes an appealing protective outcome for an individual litigant masks long-term dysfunction if the principle is applied (as it must be for constitutional adjudication) in the full array of cases. The deciding judge may never have to confront the issue again, and so may remain unaware of such subtle complications, but government officials responsible for the primary activities in the arena at issue will have to live with the new rules in decisions made every day. Having that quotidian responsibility, while standing accountable not only for observing the law but also for achieving specific and often vital objectives, such as winning an armed conflict or protecting against crime or other law violations, those nonjudicial role players may more readily perceive the systemic disadvantages when a court decision forecloses further adaptation. Consider, for example, the vexing issue of the use of confidential information, not shared with the individual, to make decisions having serious consequences for the person’s fate – such as criminal sanctions, preventive detention, or deportation. Any such use undercuts fairness to the individual, but utterly foreclosing it may hamper efforts to stop or disrupt globally organized clandestine terrorist networks.3 Whether such use is justified probably requires a complex answer, greatly dependent on circumstances and the availability of alternative safeguards in the particular setting. It is unlikely that such an answer can be properly calibrated once and for all in an single blanket constitutional ruling.4 3

This tension was nicely captured in successive rounds of litigation involving the use of secret evidence in a deportation case. In an opinion sharply critical of the government, the district court judge held that due process precluded the use of such information. Kiareldeen v. Reno, 71 F.Supp.2d 402 (D.N.J. 1999). The government’s effort to deport had drawn widespread and mostly critical media attention, and the Clinton administration decided not to appeal. But the individual then sought attorneys’ fees, asserting, as the fee statute required, that the government’s position was not “substantially justified.” Appeal of that award reached the court of appeals after September 11, 2001. The court denied fees, adding strong language about the need to protect intelligence sources and methods and strongly hinting that the original decision (which was already final) had been wrong. Kiareldeen v. Ashcroft, 273 F.3d 542, 552-53 (3d Cir. 2001). 4

See David A. Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis, 2001 Supreme Ct. Rev. 47, 126-36.

2

http://law.bepress.com/uvalwps/uva_publiclaw/art70

To achieve effective governance, in short, it is sometimes important to leave room for policy, for flexibility in the face of real uncertainties, for adjustment as conditions change. This has probably been particularly true in the current phase of the struggle against terrorism. So many new questions loomed in the immediate aftermath of the September 11 attacks – about the scope of the terrorist network, the immediate risk of repeat incidents, the most effective methods for acquiring information and for responding, the best modes for international cooperation, and the degree to which our normal peacetime understanding of rights protections would have to be modified or trimmed in order to assure an effective response.5 In Justice Robert Jackson’s apt phrasing, the “actual art of governing” cannot readily conform to “judicial definitions of power.”6 Jackson, who served the nation as Solicitor General and then Attorney General as fascism and world war descended on Europe, was personally acquainted with the most difficult of decisions that might face a President. He knew what he was talking about. He wrote his famous Youngstown concurrence, from which these words are drawn, to distance himself from Justice Hugo Black’s rigid and categorical opinion for the Court. And his more nuanced pragmatism is now regarded as the far better guide to resolving similar controversies over executive power than Black’s misguided formalism.7 A similar pragmatism undergirds the judicial doctrine that calls for avoidance of constitutional questions whenever possible – a practice conspicuously in play in Hamdan.8 Alexander Bickel analyzed such judicial self-denial in his famous writings on the so-called “passive virtues.” Describing the Court’s frequently cautious approach to novel and difficult issues having constitutional implications, he wrote: A sound judicial instinct will generally favor deflecting the problem in one or

5

The text of the U.S. Constitution is remarkably economical in acknowledging that rights might be limited in time of emergency, but it does permit habeas corpus to be suspended, thus allowing for preventive detention, when invasion or rebellion necessitates such a step. Art. I, sec. 9, cl. 2. And interpretation of specific constitutional rights has often allowed greater scope for government action at times of genuine risk. See, e.g., . Home Building & Loan Ass'n v. Blaisdell, 1934, 290 U.S. 398, 425-426 (1934); Schenck v. United States, 249 U.S. 47 (1919). International human rights treaties are typically more explicit regarding the possibilities for limitations, as a typical formula puts it, “in the interests of national security[,] . . . public safety, [or] public order (ordre publique).” International Covenant on Civil and Political Rights (ICCPR), art. 22 (freedom of expression), entered into force March 23, 1976, 993 U.N.T.S. 171. And in time of serious public emergency, officially declared, a state party may derogate from most, but not all, human rights obligations “to the extent strictly required by the exigencies of the situation.” Id. art. 4(1). 6

Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 635 (1952).

7

See Dames & Moore v. Reagan, 453 U.S. 654, 668-669 (1981).

8 See Ashwander v. TVA, 297 U.S. 288, 346-49 (1936) (Brandeis, J., concurring). Our tradition’s treatment of treaties is more complex, because with a sufficiently clear statutory statement, Congress can override a treaty, as far as domestic application is concerned. But well-established doctrine calls for courts to construe statutes so as to avoid conflict with international treaties whenever possible. See Part IIB below.

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more initial cases, for there is much to be gained from letting it simmer, so that a mounting number of incidents exemplifying it may have a cumulative effect on the judicial mind as well as on public and professional opinion. Moreover, an initial series of inconclusive dispositions will often provoke the Justices to reflect out loud, as it were, about approaches to an enduring solution, without as yet assuming responsibility for imposing one.9 Such deflection need not mean inattention to constitutionally congruent human rights concerns. Many avoidance devices, Bickel observed,“can produce an immediate result favorable to the party seeking the shelter of the Constitution without causing the Court to adjudicate issues it should not.”10 Hamdan achieved such a result, and avoided, at least for a time, the adjudication of an issue that might potentially profit from further maturation of public and professional opinion. But delaying definitive resolution of a serious constitutional question is not just a matter of promoting better judicial deliberation. It often serves as well to call forth more careful executive or legislative consideration of how to regulate. When the Court construes a statute narrowly to invalidate a particular executive practice on subconstitutional grounds, it essentially invites the executive either to modify its actions or else go back to Congress to obtain more specific authority. Especially when Congress has been as neglectful of serious oversight and deliberate legislating as was the Republican-led Congress for the first five years after September 11, such action-forcing advances democratic values.11 The remand to the political branches also amounts to a judicial wager that the later look at the issue, now that the Court has helped clarify the stakes, will be more careful and perspicacious. Such cases, Bickel explained, “on particularly sensitive and intractable issues, demand[] not merely that there be a deliberate exertion of legislative authority, but that it be explicit and thus more acutely responsible than usual.12 Moreover, the inevitable passage of time between adoption of the initial measure and its provisional invalidation often means that the fears or passions that prompted the earlier and more restrictive measure will have cooled. Such a judicial remand thus amounts to a “process of avoidance and admonition,” said Bickel, establishing “a sort of colloquy with the political institutions.”13 As its part of the colloquy, the Court sets up “a framing of conditions to invite a responsible legislative decision.”14 9

Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 176 (1962).

10

Id. at 173.

11

See Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259, 1275-77, 1308-09 (2002); Bradley, this Agora. 12

Bickel, supra note 9, at 181.

13

Id. at 159 (emphasis added).

14

Id. at 156.

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B. The track record of remands to Congress and the executive branch Over the five years preceding Hamdan, the political branches had reacted rather constructively to several similar avoidance decisions; the interbranch colloquy had been productive. Thus the Hamdan majority had solid reason for optimism that a judicial remand to Congress of the military commission question could yield an appropriately balanced result and might even obviate any further need for the Justices to reach a number of difficult constitutional questions. Consider the track record of those five years. The Court’s 2001 ruling in INS v. St. Cyr,15 for example, had avoided pronouncement on several weighty and long-disputed constitutional issues related to the suspension clause16 and Congress’s power over the jurisdiction of the federal courts (many of which are also implicated by the MCA). It still reached a protective result by construing narrowly a jurisdiction-stripping statute that ostensibly barred all judicial review of deportation orders entered against aliens with criminal convictions. The Court held that habeas corpus review remained available to such individuals because Congress had failed to state with maximum clarity that it intended to cut off that particular form of judicial access.17 The dissent complained that the Court was simply faulting Congress for failing to use certain “magic words” that it could readily insert in the next round of legislation.18 Happily, however, by the time Congress came back to the question four years later, it stopped short of going for the constitutional jugular. Although it did employ the magic words in order to block habeas review in the district courts, it nonetheless heeded several admonitions in the majority decision and explicitly preserved another avenue for judicial review in the courts of appeals of all “constitutional questions and questions of law.”19 Core constitutional values were preserved, but by legislative action, rather than judicial command rooted in a fixed constitutional understanding.20 15

533 U.S. 289 (2001).

16

Article I, sec. 9, cl. 2 (“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.”) 17

533 U.S. at 305.

18

Id. at 327 (Scalia, J., dissenting).

19

REAL ID Act, Pub. L. 109-13, Div. B, § 106, 119 Stat. 302, 310-11 (May 11, 2005) (amending Immigration and Nationality Act (INA) § 242, 8 U.S.C. § 1252). The quoted language appears in a new INA § 242(a)(2)(D). 20

See also Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the Court noted serious constitutional questions when a person ordered deported is instead subjected to lengthy detention because no other country is willing to accept him. Nonetheless, the Court stopped short of ruling on the constitutionality of the practice, instead engaging in a strained reading of the statute at issue to find, in essence, a soft six-month limit on such post-order detention. See generally Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom

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The Court’s trilogy of 2004 decisions regarding executive actions in the war on terror had also triggered rather promising initial responses from the political branches (though still less than all one might have wished). Rumsfeld v. Padilla considered what has probably been the single most dangerous assertion of executive authority by the Bush administration – unilateral power to pick up a U.S. citizen in the United States, label him an “enemy combatant” without any chance for him to contest the finding, and then subject him to indefinite detention, virtually incommunicado. The Supreme Court, to be sure, found technical defects in the precise habeas action filed by Padilla, and so dismissed that particular challenge.21 But it conspicuously declined to embrace the broad assertions of sweeping executive power tendered by the Solicitor General,22 simply leaving such matters for consideration in a later habeas filing in the proper district – an avenue for review that clearly remained open to Padilla. Moreover, the Court’s contemporaneous ruling in Hamdi v. Rumsfeld, which insisted on certain due process protections for a U.S. citizen picked up in the less favorable setting of the Afghanistan theater of war, clearly signaled major difficulties for the government regarding Padilla’s continued detention.23 Ultimately the government blinked, discharged Padilla from indefinite confinement as an enemy combatant, and instead transferred him to normal federal custody to stand trial for criminal charges in federal court.24 The Hamdi ruling had other and wider impacts as well. Technically it dealt only with the due process requirements applicable to a U.S. citizen whom the government wanted to detain, without criminal charge, as an enemy combatant. So far as we know, there have been only two such citizens even initially subjected to such treatment – Hamdi and Padilla. All the rest placed in indefinite detention as enemy combatants have been foreign nationals, and all but one of them are held offshore.25 Nonetheless, owing to another subconstitutional ruling – another judicial exercise of the passive virtues – in the 2004 trilogy, Rasul v. Bush, the government found itself exposed to habeas corpus challenges over their detention. The Rasul plaintiffs had argued, inter alia, that the Constitution requires habeas review of such detention at Guantanamo, even though that naval base is not technically under U.S. sovereignty. Though the Court gave a few hints that Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545 (1990). 21

Rumsfeld v. Padilla, 542 U.S. 426 (2004).

22

Brief for the Petitioner at 35-38, Padilla, 542 U.S. 426 (No. 03-1027), 2004 WL 542777.

23

Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

24

Eric Lichtblau, In Legal Shift, U.S. Charges Detainee in Terrorism Case, N.Y. Times, Nov. 23, 2005, at A1. The government also avoided further judicial rulings on the exact procedures to be applied on remand in the Hamdi case by reaching an agreement with Hamdi that resulted in his release from detention, his surrender of U.S. citizenship, and his return to Saudi Arabia. Jerry Markon, Hamdi Returned to Saudi Arabia: U.S. Citizen's Detention as Enemy Combatant Sparked Fierce Debate, Wash. Post, Oct. 12, 2004, at A02. 25

The exception is Ali Saleh Khalah al Marri. An appeal from a denial of habeas corpus in a case challenging his indefinite confinement in a navy brig in South Carolina, al-Marri v. Wright, 443 F.Supp.2d 774 (D.S.C. 2006), was recently heard in the Court of Appeals for the Fourth Circuit.

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it might favor that constitutional argument, its ultimate holding merely construed the existing habeas statute to find that it conferred jurisdiction over habeas claims filed by persons detained at Guantanamo.26 In response to both Rasul and Hamdi – actually within two weeks after the Court’s 2004 rulings – the executive branch changed its detention procedures significantly, evidently in order to reduce exposure to negative rulings in the predictably forthcoming Guantanamo habeas challenges. The government unilaterally initiated “combatant status review tribunals” (CSRTs), roughly patterned on what the Hamdi decision had said the due process clause requires for a citizen in such a context.27 These tribunals afforded what the administration had stoutly resisted up to that point: a hearing for all such detainees regarding whether they actually fit the standards for “enemy combatant” detention. The Court had by no means ordered such action for this class of alien detainees, on either constitutional or statutory grounds. The outcome was instead the fruit of an implicit colloquy between court and executive. There remain major and disturbing questions about the sufficiency of the procedures in the CSRTs (discussed in several contributions to this Agora),28 but their existence at least marks an advance over the procedureless wasteland that preceded them. And they have ruled that at least 38 detainees should be released.29 C. The Court’s ruling in Hamdan

26

Rasul v. Bush, 542 U.S. 466 (2004).

27

See Deputy Secretary of Defense, Memorandum for the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, July 7, 2004, available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf. More detailed implementation procedures were provided in a memorandum issued by the Secretary of the Navy, July 29, 2004, available at http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf. This was updated in a memorandum issued by the Deputy Secretary of Defense July 14, 2006, available at https://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf. 28

See, e.g., Farer, Bradley [this Agora] The CSRTs appear to depart in a few respects from the Hamdi model, particularly regarding the neutrality of the tribunal decisionmaker, rights to representation by counsel, and the individual’s access to evidence bearing on the case. These elements are ripe for challenge in later rounds of litigation over the CSRTs, which will now apparently take place exclusively before the Court of Appeals for the D.C. Circuit, under MCA § 7. See Boumediene v. Bush, 127 S.Ct. 1478 (2007) (denying certiorari in habeas case challenging CSRT process, over three dissents; separate statement from Justices Stevens and Kennedy, who concurred in denial of certiorari, acknowledged significant issues but noted importance of exhaustion of statutory remedies). See also William Glaberson, U.S. Won't Limit Detainees' Visits With Attorneys, N.Y. Times, May 12, 2007, at A1 (discussing litigation over ongoing restrictions in connection with CSRT proceedings). 29

See David A. Martin, Offshore Detainees and the Role of Courts after Rasul v. Bush: The Underappreciated Virtues of Deferential Review, 25 Boston College Third World L.Rev. 125, 141-43 (2005); Jeffrey Rosen, My Gitmo Vacation, The New Republic, Mar. 5 & 12, 2007, at 16, 19. A related institution, administrative review boards providing an annual review of detainees’ cases to see whether they no longer pose a threat or can in any event be returned to their home countries, has also resulted in 14 releases and 119 transfers to other countries. Id.

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When it reached the merits in Hamdan v. Rumsfeld , the Supreme Court held, on statutory grounds, that the petitioner could not be tried before the troublingly summary military commissions called into being by President Bush’s November 2001 Military Order. Justice Breyer’s concurrence, writing for four members of the majority, emphasized that the majority tendered its ruling in precisely the Bickelian tradition of interbranch colloquy: “Nothing prevents the President from returning to Congress to seek the authority he believes necessary. Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine – through democratic means – how best to do so.”30 The Court left room for this dialogue because Justice Stevens’ opinion for the Court avoided comment on the hot-button issue of how far the President’s bare constitutional power extends in these circumstances.31 Instead it relied entirely on statutory construction to rule for Hamdan. The Court found definitive guidance in the meager statutory provisions Congress had enacted touching upon military commissions, primarily in Article 21 of the Uniform Code of Military Justice (UCMJ). That statute, as the Court construed it, required that such commissions conform to the law of war, and President Bush’s commissions failed this test.32 Military commissions were not precluded under the Court’s ruling, however. Thus was the stage set for Congress to revisit the issue, debate in public the advantages and disadvantages of military commissions, consider alternative mechanisms and procedures, and enact new legislation. Moreover, it would have to do so in a context where the Court had just held, in a breakthrough ruling, that even al Qaeda detainees hold important rights under Common Article 3 of the Geneva Conventions. II. The Military Commissions Act A. The legislative process As it happened, the legislative reconsideration was a disappointment to those of us who are partial to the judicial “passive virtues.” Congress did not give this complex and sensitive issue the careful, extended thought that it richly deserved, largely because the Bush administration insisted on having a bill enacted before Congress left town to campaign in the 30

126 S.Ct. at 2799 (paragraph break omitted).

31

Nonetheless, despite its silence on these questions, in holding the President so closely to the standards specified by Congress in art. 21 of the UCMJ, the Court necessarily declined to accept broad assertions that the President, based on his inherent authority as chief executive and commander-in-chief, could establish military commissions on an extra-statutory basis, in ways that might not conform to any specifications by Congress. See Hamdan, 126 S.Ct. at 2773-74. See also Brief for Respondents at 20-23, Hamdan, 126 S. Ct. 2749 (No. 05-184), 2006 WL 460875 (Solicitor General’s arguments asserting inherent presidential power to establish military commissions). 32

126 S.Ct. at 2772-75.

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2006 elections – a mere three months after the Hamdan decision. The administration’s announced sense of urgency was utterly artificial. Although partisans of the military commission approach had argued the need for extraordinarily speedy trial and punishment as a prime justification for this legal novelty, in fact 17 months elapsed after the President’s November 2001 order before the commissions even had their procedures in place, and 31 months passed before the first charges were referred.33 I do not mean that as a criticism, because the internal battles that evidently slowed issuance ultimately resulted in rules and regulations that provided far more appropriate guarantees for the accused than appeared likely from the President’s order. But this schedule belied any real claim that swift trials were essential. To be sure, the remaining __ months up to the legislative deliberations of 2006 had been consumed by litigation filed by the administration’s castigated scapegoat34 – habeas lawyers – but it was not as though a normal process of congressional hearings, debate, and careful drafting would result in the imminent release of the detainees. Hamdi’s acceptance of the underlying practice of preventive detention, in terms that would probably cover the major portion of the captives in the post-September-11 conflicts, plainly meant that any potential commission defendants were going nowhere in the meantime. The urgency was instead political. Plainly the administration feared that a new Congress would be less receptive to the kind of commissions that it favored, particularly if the Democrats gained control of one or both houses. Moreover, it appeared just possible that President Bush could use the vote on the military commission legislation itself to paint Democratic candidates as insufficiently tough on terrorism and so help hold more Republican seats. A similar script had been used, to great success, in the 2002 off-year elections, when the administration picked a fight over certain labor-law details in the legislation that created the Department of Homeland Security. Though Bush himself had initially opposed the very creation of the Department, by this maneuver he had succeeded in using Democratic resistance to the committee-reported version of

33

See Alberto R. Gonzales, Editorial, Martial Justice, Full and Fair, N.Y. TIMES, Nov. 30, 2001, at A27 (highlighting the capacity of commissions to “dispense justice swiftly”). The initial statement of procedures was issued in March 2002, DEPARTMENT OF DEFENSE, MILITARY COMMISSION ORDER NO. 1 (March 21, 2002), 41 ILM 725 (2002), but the Commissions were not fully equipped to proceed with trials until a further set of Military Instructions were completed, addressing such topics as the list of chargeable crimes and their elements, responsibilities and qualifications for counsel filling various roles, sentencing, and administrative procedure. These Instructions (Military Commission Instructions 1 through 8) were published on April 30, 2003. See, e.g., DEP’T OF DEFENSE, MILITARY COMMISSION INSTRUCTION NO. 2, Crimes and Elements for Trials by Military Commission (Apr. 30, 2003), available at . The first charges initiating actual commission prosecutions were referred in June 2004. See Dep’t of Defense News Release No. 620-04, Military Commission Charges Referred (June 29, 2004), available at . 34

See Editorial, Ban All the Lawyers: Prisoners at Guantanamo don't really need them, or so says the Justice Department, WASH. POST, April 29, 2007, at B6.

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the bill to his party’s electoral advantage.35 The President made another politically deft, if cynical, move in an effort to assure prompt and favorable consideration of new authority for military commissions. On September 6, 2006, just as Congress returned from its August recess, he delivered a major White House address that began by describing several important al Qaeda detainees and the information that U.S. personnel had been able to obtain from them during interrogations that used an “alternative set of procedures.” Then, after mildly criticizing the Supreme Court’s Hamdan ruling, the President stated that he was that day (four weeks before the expected election recess) sending his proposed military commission legislation to Capitol Hill, and he wanted swift action. His boldest move followed: an announcement that he had just ordered that 14 “high value” al Qaeda detainees, including the alleged mastermind of the September 11 attacks, Khalid Sheikh Mohammad, be moved from the secret CIA prisons where they had been interrogated to Guantanamo, in order to stand trial. He went on: “As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice.”36 Bush made no mention of why these prisoners were not being brought for trial before regular U.S. courts. But it was not hard to discern a reason, following the preceding twenty-minute discussion of the multi-year detention and interrogation that led up to this prisoner transfer. It was as though the President were daring Congress, immediately preceding an election, to deny him the tools he said he needed to deal with the worst of al Qaeda’s leaders – in a setting where dubious U.S. government behavior during interrogation (or perhaps the half-decade delay in commencing trial) would apparently make it quite difficult to apply normal criminal justice procedures.37 With only about four weeks for deliberation, immediately before an election, conditions were hardly favorable for the kind of sober second thought that might normally accompany a Supreme Court remand to Congress. Nonetheless, an important faction of the Senate, led by Republicans John Warner, John McCain, and Lindsey Graham, did resist many of the President’s provisions – thus providing political cover, owing to their impeccable military credentials, for Democrats who still feared an electoral trap. But as the election deadline drew near, the pressure mounted to complete action on a bill that the President would accept. When Warner, McCain,

35

See Carl Hulse and Todd S. Purdum, Daschle Defends Democrats' Stand on Security of U.S., N.Y. Times, Sept. 26, 2002, at A1; NY Times Distorted Democratic Position on Homeland Security Legislation, Media Matters for America, Dec. 19, 2005, available at http://mediamatters.org/items/200512190015. 36

President Discusses Creation of Military Commissions to Try Suspected Terrorists, Sept. 6, 2006 (transcript of President’s remarks), available at http://www.whitehouse.gov/news/releases/2006/09/20060906-3.html. 37 The President used these careful words: “The procedures in the bill I am sending to Congress today reflect the reality that we are a nation at war, and that it's essential for us to use all reliable evidence to bring these people to justice.” Id. Implicitly, the normal federal court rules for suppressing evidence improperly obtained would preclude the use at trial of some of the information our interrogators had secured.

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and Graham accepted a compromise, quietly capitulating on the most important matters,38 those who still had misgivings about elements of the resulting bill found themselves ill-positioned to block passage. B. Surviving prospects for constructive use of international law in applying the Act The problems with the Act, including the ways in which it falls short of fully implementing the international law of war, are amply catalogued in other Agora contributions, and I will offer here only a few broader observations.39 The compromise legislation shows its seams. It contains several peculiarly worded provisions that look in contradictory directions and will not be easy to interpret or to reconcile. One might take some solace from this ambiguity, however. The wording is just strange enough that a court minded to find room to achieve protective results should be able to do so. For example, two provisions forbid any person to “invoke” the Geneva Conventions “as a source of rights” before military commissions or in habeas corpus or other judicial proceedings.40 Though ostensibly quite restrictive, the wording could be found to leave room for a court to enforce Geneva-sourced rights sua sponte. At the very least, and probably to equal effect, an individual detainee should still be permitted to refer to the Geneva Conventions as the basis for a Charming Betsy argument affecting how a court should construe a particular statutory provision.41 That familiar landmark case held that statutes should be construed, whenever possible, so as not to contravene applicable international law. A detainee referring to the Conventions under this approach would not be invoking them as a source of rights. The statute would remain the source of the claimed right; the treaty would be simply a helpful guide, in line with traditional interpretive practice, for construing the statutory provision.42 After all, the MCA (despite its oddities) is nonetheless clearly framed as a bill that

38

See R. Jeffrey Smith, Detainee Measure to Have Fewer Restrictions: White House Reaches Accord With Lawmakers, Sept. 26, 2006, at A1; Carl Hulse & Kate Zernike, Deal Likely on Detainees but Not on Wiretapping, N.Y.Times, Sept. 27, 2006, at A1. 39

See Jack M. Beard, The Geneva Boomerang: The Military Commissions Act of 2006 and U.S. Counterterror Operations, 101 AM. J. INT'L L. 56; Carlos Manual Vázquez, The Military Commissions Act, the Geneva Conventions, and the Courts: A Critical Guide, 101 AM. J. INT'L L. 73; Michael J. Matheson, The Amendment of the War Crimes Act, 101 AM. J. INT'L L. 48; Farer. The main problem areas include the departures from court-martial procedures, standards that may permit the use of evidence obtained through improperly coercive techniques in commission proceedings, the provisions for the use of classified information, the watering down of some Geneva standards for purposes of criminal prosecutions of U.S. personnel under the War Crimes Act, and the element that I will focus on in Part III, the constriction of judicial review, particularly by way of habeas corpus. 40

MCA §§ 3 (new 10 U.S.C. § 948(b)(g)), 5(a).

41

Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 188 (1804). See Vazquez, supra, 101 AM. J. INT'L L at 80-81. 42

This conclusion is bolstered by the contrast of the quoted language with the wording of MCA § 6, which deals with prosecutions under the War Crimes Act, 18 U.S.C. § 2441. Section 6, but not the former language dealing with the invocation of the Geneva Conventions, expressly limits what courts themselves may do: “No foreign or

11


implements common article 3 (and perhaps other Geneva Convention provisions, such as those criminalizing grave breaches), rather than as a bill that creates rules on a legal terra nova. This overall legislative approach was hardly inevitable. That Congress debated the issue after a Supreme Court remand holding that common article 3 covers these detainees surely played a major role in producing that result. Though Congress has spoken, the interbranch colloquy is plainly going to continue. And of course the Court is not pledged to engage in constitutional avoidance forever. Instead it always reserves the authority to confront difficult rights and powers questions head-on after harvesting the further practical experience and public deliberation enabled by its initial forbearance. Of equal importance, Congress might yet revisit some of the more controversial MCA measures. The President’s injection of the military commission issue late in the 2006 election season did not bring about the same political result he enjoyed in 2002. Control of the Congress passed to the Democrats, and restoration of habeas corpus is under serious consideration.43 III. The Judicial Role for the Future For a Bickelian interbranch colloquy to continue, the federal courts obviously must have jurisdiction. The MCA, in some of its most controversial provisions, ostensibly strips jurisdiction over certain key questions – notably challenges to the treatment of detainees and the conditions of their confinement, as well as challenges filed by prisoners who are detained as suspected enemy combatants but who are either never placed before a CSRT, or whose CSRT proceedings are greatly delayed. A. Where judicial review is reasonably secure, and what this means for the protection of rights Before considering these particular habeas issues, however, it is worth noting how much narrower the battleground over court access has become since the first days of the Bush administration’s plans to conduct the war on terror. The administration’s first stance was essentially to keep courts – indeed all lawyers – completely away from detainees. This resistance was manifested in different ways with regard to the two main components of the detention controversy: first, the trial of detainees before military commissions, and second, the asserted authority to subject “enemy combatants” to indefinite detention without bringing any sort of criminal charge. I will take each in turn.

international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441.” (Emphasis added.) 43

See, e.g., Josh White, Bill Would Restore Detainees' Rights, Define 'Combatant,' Wash. Post, Feb. 14, 2007 at A8; Editorial, Chance for Reform: House Democrats could move to restore habeas corpus rights to foreign prisoners, Wash. Post., May 9, 2007, at A16. .

12


The President’s 2001 Military Order initially establishing military commissions contained this provision: “the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.”44 The message seemed clear. But when this language touched off a firestorm of criticism, White House Counsel Alberto Gonzales published an op-ed in the New York Times essentially stating that the language did not mean what it said, because the Supreme Court had construed similar language in an order by President Franklin Roosevelt to permit a challenge to “the lawfulness of the commission’s jurisdiction.”45 The vigorous public controversy over trials before military commissions, triggered by that highly visible November 2001 presidential order, obscured for a while the second, more subtle, and ultimately scarier incarceration process: the indefinite detention of enemy combatants, even of U.S. citizens picked up within the United States. The administration claimed inherent executive authority to engage in this practice, bolstered by an assertion of implicit authorization from Congress’s resolution authorizing the use of military force in response to the September 11 attacks. It further contended that military necessity required that these individuals be kept in virtually incommunicado detention – which clearly included preventing contact with a lawyer, much less with a court.46 The administration’s policy provided no procedure whatever to challenge a person’s designation as an enemy combatant, save perhaps the detainee’s encounters with his interrogator. The administration has long since been forced to give up those positions. The 2004 Supreme Court trilogy made it clear that the courts would entertain habeas actions challenging enemy combatant designations. As noted, the administration then swiftly responded by providing an administrative hearing for such persons, the Combatant Status Review Tribunals, hoping thereby to make the CSRTs the primary venue for consideration of the facts underlying a

44

Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.Reg. 57,831 (Nov. 16, 2001). 45

Alberto R. Gonzales, Martial Justice, Full and Fair, N.Y. TIMES, Nov. 30, 2001, at A1. His reference, though not spelled out, was to the Nazi saboteur case, Ex parte Quirin, 317 U.S. 1 (1942). 46

See Hamdi v. Rumsfeld, 542 U.S. at 540-41 (Souter, J., concurring in part and dissenting in part). The most revealing account of the lengths to which the government wished to go appeared in the documents filed to support the government’s motion for reconsideration of an initial order in the Padilla case commanding access to his attorney. One affidavit asserted that it was essential to the interrogation process to keep the individual isolated. Contact with an attorney might provide hope and therefore undo the crucial aura of utter dependency on the interrogator that the government had spent much time creating. See Padilla v. Rumsfeld, 243 F.Supp.2d 42, 44 (S.D.N.Y. 2003). The district court did not grant reconsideration, but lengthy appeals meant that Padilla did not see counsel (nor, apparently, family members) for many additional months. Doctors who eventually examined him at the behest of the defense to determine his fitness to stand trial, in his later federal criminal proceeding, found mental impairment and post-traumatic stress disorder. See Deborah Sontag, Defense Calls Padilla Incompetent for Trial, N.Y. Times, Feb. 23, 2007, at A18.

13


designation, displacing district courts entertaining habeas petitions.47 And it acquiesced in legislation, the Detainee Treatment Act of 2005 (DTA), keeping open an avenue of judicial review, albeit one more precisely channeled and structured than the general writ of habeas corpus, for both those CSRT decisions and final judgments of military commissions.48 Channeling review – setting up specific procedures, time limits, standards, or venues that depart from normal habeas practice – is not itself problematic. The Supreme Court held in Swain v. Pressley that the Suspension Clause of the Constitution does not require that habeas corpus per se be maintained, as long as the Congress provides a constitutionally adequate substitute permitting full and fair consideration by the courts of a claim of unlawful detention.49 Under the DTA, habeas was precluded for Guantanamo detainees, but judicial access over these two types of issues (CSRT and military commission orders) was preserved, in the form of special review available exclusively in the Court of Appeals for the District of Columbia, to take place after the detainee exhausted all internal remedies.50 The MCA essentially continued that DTA review structure, even widening it slightly to cover a CSRT decision issued anywhere in the world, not simply at Guantanamo.51 Both statutes also prescribed the scope of review for such appeals. The D.C. Circuit is to consider whether the final decisions is “consistent with the standards and procedures” set forth in the relevant statute or administrative regulations, and also “to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures . . . is consistent with the Constitution and laws of the United States.”52 Thus the MCA judicial review debate essentially took for granted a level of access to the courts that had been anathema to the Bush administration before 2004 – although solely with respect to these two key kinds of adverse determinations. Because these two are probably the most consequential determinations facing the detainees, that shift in the terrain of contestation is a major achievement, which should not be lost from sight in the understandable disappointment 47

Hamdi v. Rumsfeld contemplated fact finding of this type by a habeas court, at least where a U.S. citizen was the petitioner and had enjoyed no previous opportunity to contest the facts allegedly supporting the designation. But the Court there also made clear that the government could instead shift such factfinding to an administrative process, if it created such a process containing adequate procedural safeguards. 542 U.S. at 538-39. 48

Pub.L.No. 109-148, 119 Stat. 2739, § 1005(e) (2005) [hereinafter DTA].

49

430 U.S. 372 (1977). See generally Richard H. Fallon, Jr., & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 HARV. L. REV. (forthcoming June 2007). 50

The D.C. Circuit has not been receptive to detainees’ claims in the post-September 11 era. See, e.g., Boumediene v. Bush, 476 F.3d 981, 991-92 (D.C.Cir. 2007), cert. denied, 127 S.Ct. 1478 (2007) (rejecting Guantanamo habeas petitioners’ claim in part because they have no constitutional rights to assert, being aliens who lacked “presence or property” in the United States). 51

MCA § 7. By the same token, the MCA bars habeas and other review of detainee treatment issues not only for Guantanamo detainees, as did the DTA, but for equivalent detainees anywhere. 52

DTA § 1005(e)(2)(C) and (3)(C), 8 U.S.C. § 801 note, as amended by MCA § 9.

14


felt by human rights advocates over remaining MCA review deficiencies. My guess is that at least five justices will find significant deficiencies in the CSRTs as currently constituted, especially with regard to the limited access to evidence afforded the detainee and perhaps also insufficient guarantees of the neutrality of the decisionmaker.53 They may also find fault with the substantive standard that defines enemy combatants subject to such detention,54 and might also decree that counsel – not just the “personal representative” now appointed by the military, with whom the detainee does not enjoy a confidential relationship – must be allowed to play a role in the CSRT proceedings. In like manner, the availability of judicial review for military commission judgments means that the controversies over that institution’s procedures and standards will not be finally decided by the Department of Defense. Here the MCA has already moved a long distance from the skeletal protections envisioned in the November 2001 Bush order. The Court is therefore less likely to be moved to find constitutional invalidity (or serious constitutional doubt) here than in the CSRT setting, though the Justices may well engage in some fine-tuning of the procedures, particularly with respect to the use of classified information or information derived from coercion or ill treatment of the accused. B. Situations in which judicial review may take place only if the MCA is amended or ruled unconstitutional The DTA and the MCA expressly forbid federal court access for detainees, including via habeas corpus, to raise issues other than challenges to a final CSRT or military commission ruling. That this elimination of review was first implemented by the Detainee Treatment Act is at least ironic, in a way perhaps not fully appreciated by its drafters. Enacted as a result of the leadership of Sen. John McCain, a former POW and torture victim himself, the DTA was initially celebrated because, in the wake of the Abu Ghraib revelations and other accounts of severe mistreatment of U.S. prisoners, it legislated specific bans on cruelty to detainees. Significantly, the Act outlawed not just torture but the wider category of “cruel, inhuman and degrading treatment” inflicted on anyone in U.S. custody or physical control, “regardless of nationality or

53

See Farer, this Agora, at __; Fallon & Meltzer, supra note 49, at [60-64 in draft].

54

The operative definition of “enemy combatant” remains less than optimally clear. Regulations revised in July 2006 still use the same definition the Supreme Court extracted from government filings in the Hamdi case, “an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces,” available at http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf. The MCA provides a broader definition of unlawful enemy combatant, but, formally at least, only for purposes of determining who is subject to prosecution before a military commission, not for purposes of indefinite noncriminal detention. See 10 U.S.C. § 948a(1) and (2), as added by MCA § 3.

15


physical location.”55 That firm statutory proscription was a milestone. But the judicial review limitations then badly undercut this central message, for they essentially forbade federal courts to consider the day-to-day behavior of guards and interrogators toward the prisoners. Thus an act grandly labeled the Detainee Treatment Act told the federal courts that they cannot have anything to do with reviewing detainee treatment. In 2006, Congress did not revisit this jurisdiction-stripping choice. The MCA merely reworded the review ban somewhat and expanded it to cover any enemy combatant detainee, wherever detained. It now provides that, with the two specific exceptions for review in the D.C. Circuit of final rulings by military commissions or CSRTs, “no court, justice, or judge shall have jurisdiction to hear or consider [an application for habeas corpus or] any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”56 Under this language, a detainee’s claim that he is being subjected daily to torture could not be heard in federal court. Similarly, a claim that he was detained for a lengthy period while the government dawdled over convening or completing the CSRT process, would not be subject to review.57 One of the most important lingering issues posed by the MCA is thus whether this bar on judicial access is constitutional. To answer that question, the Court will have to address whether constitutional habeas corpus rights extend to offshore detainees (including whether the location of detention – Guantanamo vs. U.S. detention facilities elsewhere in the world – makes a difference on that point) and, if so, whether such detainees have other rights under the U.S. Constitution to assert once their cases arrive at the courthouse. 1. Concerns about a judicial role Matters as important as this ought to be subject to review. Nonetheless, to rule or legislate that judicial review shall apply to claims involving detainee treatment requires facing squarely and honestly some substantial objections to such a role for the courts. It also counsels designing the exact contours of judicial review, when it takes place, to make allowance for the valid elements of those objections. 55

DTA §1003(a).

56

28 U.S.C. § 2241(e), as added by MCA § 7 (emphasis added).

57

In their disparate comments in separate opinions accompanying the April 2007 denial of certiorari in Boumediene v. Bush, however, five justices rather clearly signaled that they would find jurisdiction over such a claim of delay. Boumediene v. Bush, 127 S.Ct. 1478 (2007). Justices Stevens and Kennedy, in their separate statement, id. at 1478, noted serious issues surrounding the CSRTs and the lengthy detention of the petitioners, but voted to deny certiorari now because petitioners had not yet exhausted the direct review process in the D.C. Circuit. Justices Breyer, Souter, and Ginsberg dissented from the denial of certiorari and described their reasons at some length. Id. at 1479-80.

16


The objections to court involvement rest on two interrelated reasons. First is the concern that judges will engage in micromanagement, overriding the judgments of commanders in ways that will hamper the military effort. This objection partakes of the concerns outlined in Part IA of this essay – that judicial rulings will straitjacket responses within judge-made doctrines, killing off the flexibility and adaptability that military actors need in order to achieve their primary objectives. For reasons I have developed at length in an earlier article, such negative effects can be minimized if courts apply a substantial measure of deference to factual judgments made by military decisionmakers (for example, in the CSRTs), while concentrating instead on legal review of standards and procedures.58 That emphasis on legal rulings, particularly with regard to procedures, can also go a long way – albeit indirectly – toward improving factfinding accuracy, but without the disruption that might come if field personnel have to come testify in the court proceeding itself. A second objection maintains that, even if courts apply deferential standards of review, the very availability of judicial procedures will bring forth a flood of lawsuits that, by volume and vexation, will divert commanders from their real business. Senator Lindsey Graham, perhaps the most forceful advocate of limiting the judicial role in reviewing detainee claims, put it this way: “It is not fair to our troops fighting in the war on terror to be sued in every court in the land by our enemies based on every possible complaint.”59 Elsewhere he has spoken of “frivolous suits” filed by enemy combatants, seeking better mail delivery, more exercise, judgesupervised interrogation, or corrections to alleged medical malpractice.60 Senator Graham’s objections carry weight, but they overgeneralize. First, doctrine to date is far from allowing “every possible complaint” to be brought against our troops. Hamdi strongly suggests that battlefield captures and the immediate process of detention and interrogation are not subject to review – that review takes hold only when the government engages in long-term detention in a location reasonably insulated from combat.61 Further, most such complaints 58

See Martin, Offshore Detainees, supra note 29, at 136-60. In that article, I develop the arguments for such factual deference at greater length. I also endeavor, drawing on my own years of experience in the executive branch, to explain why, in the real world of interactions between judges and administrators, even a deferential standard of review can have important salutary effects. As long as some form of judicial review is preserved, no administrative fact finder can know in advance exactly how closely, in actual practice in the district court, his or her rulings will be scrutinized. This uncertainty creates incentives for greater care and for the adoption of wider protections, while yet preserving space for flexibility and adaptation. The very presence of judicial review fosters better internal executive branch consideration, and also helps to strengthen the hand (or at least to avoid the sidelining) of players who favor more protective measures. 59

Quoted in Eric Schmitt, Senate Approves Limiting Rights of U.S. Detainees, N.Y. TIMES, Nov. 11, 2005,

at A1. 60 Statement from U.S. Senator Lindsey Graham on the al-Odah Decision, Press Release from Graham Office, 2/20/2007, available at http://www.senate.gov/~lgraham/index.cfm?mode=presspage&id=269573. 61

See Hamdi, 542 U.S. at 534-35. See also Rasul, 542 U.S. at 488 (Kennedy, J., concurring); Martin, Offshore Detainees, supra note 29, at 144.

17


should not have to occupy the time of troops or field commanders. The litigation will be handled by government attorneys, and if the claim is frivolous, it should meet with early dismissal on the basis of papers that the attorneys can file based on only minimal contact with anyone at the military facility where the acts allegedly took place. We are not so impoverished as a nation that we cannot afford the legal staff needed for this process. Perhaps if this were a conflict on the scale of World War II, requiring full national mobilization, one might conclude differently, but modern battles are most unlikely to assume that character. Second, and more importantly, the rash of challenges of which Graham speaks is almost surely a transitory phase – likely to subside once Congress and the Court develop a mature and settled body of legal doctrine. We are still quite early in that process of maturation. The U.S. government embarked on wholly novel steps in the wake of September 11, adopting a form of preventive detention that plainly infringes on the most foundational claims of liberty for those who are subjected to it – initially in a form (virtually incommunicado detention, without access to any judicial test of the grounds for confinement) more often associated with authoritarian regimes. It also constructed a wholly new framework for military commissions, in the process departing pugnaciously from hard-won protections that had been worked out carefully over many decades for court-martial procedures. Similarly dissonant with what many had thought was a settled national tradition of protecting prisoners from cruelties was the administration’s aggressive use of “alternative interrogation techniques.” That such steps might excite reaction, including litigation, from the individuals detained, or from their family members desperate to know what happened to their loved ones – and why – is hardly surprising – even if the Court eventually sustains some of these innovations. That lawsuits might charge other deficiencies as well – insisting on Geneva Convention standards of mail delivery, for example, or adequate exercise, or medical treatment – is not a mark of frivolousness.62 Those in charge of detention sites, plus Justice Department lawyers, might fell besieged, but only because the courts have not yet had sufficient time to flesh out the details of the governing legal framework. When the overarching constitutional and statutory rules are uncertain, nearly every practice is fair game, and a detainee’s lawyer owes it to his client not to neglect claims or theories that just might prove productive. But once those standards and procedures are given greater or more authoritative definition, the prospect changes significantly. The clarified constitutional rules can then be incorporated into administrative routine, official behavior that is even arguably deficient should diminish, and lawsuits should decline as the futility of certain kinds of challenges becomes apparent. In fact, we have already come a fair distance in settling the standards and procedures for military commissions and enemy combatant designations, as a result of the Hamdi and Hamdan 62

Mail delivery to detainees is not some low-value dispensation gratuitously bestowed or withheld. The Third Geneva Convention devotes an entire treaty section, consisting of nine articles, to “relations of prisoners of war with the exterior,” including detailed provisions on the nature and frequency of mailings and the type of censorship permitted. Geneva Convention Relative to the Treatment of Prisoners of War, arts. 69-77, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135. See also arts. 29-32 (on hygiene and medical attention).

18


rulings, coupled with the DTA, the MCA, and the Defense Department regulations and directives providing further details. Though several key issues remain, particularly regarding the CSRTs, they portend battles of far narrower scope. But in the realm of detainee treatment we have not yet seen much interbranch colloquy to help resolve the relevant standards and assure that they are observed in practice. Obviously that process will not develop unless Congress either alters the current limitations on habeas or the Court rules that the limitations violate the suspension clause. I agree with Professor Bradley, for reasons explained in his Agora contribution, that it is likely that the Court will insist on the availability of a wider scope of habeas challenges for those held at Guantanamo.63 In my view, if constitutional habeas rights apply to Guantanamo detainees, the same result should obtain at other long-term detention facilities under the control of U.S. officers.64 2. The Constitution’s application to aliens held under U.S. authority outside the United States But what rights will then apply? A judicial role that only superintends the proper implementation of statutory rights would be of value. But clearly the larger question is whether alien detainees outside U.S. territory can claim the coverage of constitutional rights, and as yet there is no definitive answer. The bare possibility of such coverage has helped to give force (in order to avoid raising constitutional questions) to some of the more protective statutory interpretations courts have thus far issued in Guantanamo cases. But can we afford to extend constitutional rights to the whole world? Or more pungently, some skeptics phrase it this way: Will our soldiers have to read Miranda rights to everyone they capture on the battlefield?65 To this specific question the answer has to be no. But objectors sometimes leap from that answer to a conclusion that therefore aliens detained outside U.S. core territory cannot possibly be deemed to hold rights under the U.S. Constitution. The intermediate possibility, of course, is that constitutional rights apply, but that they may apply in different ways, with different precise outcomes or applications, to noncitizens encountering U.S. authority outside the country. In a post-MCA enemy combatant case, which challenged the habeas petitioners’ detention at Guantanamo pursuant to a CSRT finding, the D.C. Circuit affirmed a broad rule that aliens

63

Bradley, this Agora, at __.

64

For further discussion of the limits and qualifications of this conclusion, see Martin, Offshore Detainees, supra note 29, at 143-45. 65

See, e.g., Brendan Miniter, Editorial, When Miranda Met Osama, WALL ST. J., Sept 19, 2006, available at http://www.opinionjournal.com/columnists/bminiter/?id=110008962; Face the Nation (CBS News broadcast Feb. 5, 2006) (Sen. Jeff Sessions: “when you authorize our military to use force, they can kill the enemy without a Miranda warning, they can put them in jail without a trial”), available at http://www.cbsnews.com/htdocs/pdf/face020506.pdf).

19


abroad hold no rights: “The law of this circuit is that a ‘foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise.’”66 Alhough this approach finds support in Supreme Court precedents, such a stance is remarkably formalistic and wholly unsuited to a modern world of rapid transportation, instant communication, and the kind of global threat and global response that have marked this nation’s – indeed the world’s – encounter with terrorism over the current decade. “Property or presence in this country” might once have been a sufficient shorthand to designate the minimum contacts necessary for constitutional application to make sense – and also to be of manageable scope. But if the underlying functional justification is minimum contacts with the American polity, then U.S. detainees in the war on terror clearly satisfy the test. After being seized and subjected to indefinite detention by U.S. agents, the detainee’s life must be seen as epitomizing maximum contact with government power, and it makes no difference whatever where that detention takes place. Every particle of his current life is shaped by the U.S. government – what he eats, how much he is allowed to sleep, whether he can exercise or even move freely or is instead shackled, how much of his day will be consumed with unpleasant (to say no more) interrogation sessions, whether he will have too much or too little clothing for the temperature maintained in his cell, whether he will be given access to basic sanitation, what contact, if any, he is permitted with family. The stakes for him in obtaining constitutional scrutiny of his treatment far surpass those of the foreign resident who happens to own property in one of the 50 states. In the 19th century the Supreme Court ruled in In re Ross that the “Constitution can have no application in another country.”67 In the 20th century, the reality of extensive U.S. military deployments overseas led the Court to repudiate Ross in Reid v. Covert.68 It ruled there that the trial before a court martial on a U.S. base in Europe of a soldier’s wife for his murder would violate the Bill of Rights guarantee to trial by jury. Many think that ruling is properly understood to extend constitutional rights against U.S. government action overseas only to U.S. citizens. The next major Supreme Court case considering Guantanamo challenges of any sort may afford the occasion for discovering whether they are right. But it is again a new century. In today’s conditions, where forms of global attack and response pay far less attention to national affiliations and national boundaries, the Supreme Court should overrule the D.C. Circuit and hold clearly that the Constitution applies to U.S. government action abroad – at least the type of prolonged and highly intrusive action addressed by the Detainee Treatment Act and the Military Commissions Act. For such doctrine to work, the Court is probably going to have to develop the intermediate method of rights application mentioned above. The Constitution may apply, but as a practical matter, it cannot require exactly the same sorts of procedures or standards that pertain 66 Boumediene v. Bush, 476 F.3d 981, 991-92 (D.C.Cir. 2007), cert denied, 127 S.Ct. 1478 (2007), quoting from People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C.Cir. 1999). 67

140 U.S. 453, 464 (1891).

68

354 U.S. 1 (1957).

20


in domestic law enforcement, conflict management, or trial procedure. Although Miranda warnings are not conceivable during battlefield captures, we probably should not wholly foreclose the possibility of prosecution, using some of the individual’s own statements (given the limited access prosecutors may otherwise have to probative evidence), if the captive turns out to be, let us say, a major terrorist operative. The same limited access to probative evidence may justify the use of classified information, not shared with the detainee, in reaching certain important decisions, such as whether he is properly subjected to some length of preventive detention, and possibly even for certain uses in a military commission proceeding, provided that there are alternative safeguards in place.69 I emphasize the proviso. Its elaboration and implementation would benefit greatly from the kind of interbranch colloquy, informed by constitutional values, that Professor Bickel envisioned. In short, in many instances, there may be some kind of rights discount applied in light of the foreign circumstances or the exact setting of apprehension and confinement. Discount – not abandonment. This is not a wholly new methodology, but it has an admittedly troubled pedigree. The Insular Cases similarly found that only fundamental constitutional rights apply in territories under U.S. authority that are not deemed incorporated.70 That doctrine, at least as applied to Puerto Rico and similar island possessions (for over 100 years), has drawn considerable criticism.71 But the idea of some gradation in constitutional application, in the right circumstances, should not be rejected out of hand.72 If that intermediate path is foreclosed, we would be left with only two alternatives for application of the Constitution to aliens seized and detained abroad. We could deem that the Constitution applies in full, with the likely consequence that ordinary constitutional protections will have to be watered down for everyone in order to accommodate the realities of apprehension, detention, and hearing overseas. Alternatively, large classes of persons intensely affected by assertions of U.S. government power, in circumstances where it is not realistic to apply full force the ordinary search and seizure or criminal justice protections, will have to be declared completely beyond the constitutional pale. Neither of those alternatives is attractive. A simple on-off model of constitutional protection is highly problematic in a world where global exertions of U.S. governmental power are far more

69

In an article whose writing spanned the September 11 attacks, I wrestled with some of these issues involving the use of classified information, with a special focus on its use in immigration proceedings. See David A. Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis, 2001 Supreme Ct. Rev. 47, 126-36. 70

See, e.g., Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901); Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (1903); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904); Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922). 71

See, e.g., THOMAS ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE AND AMERICAN CITIZENSHIP (2002); FOREIGN IN A DOMESTIC SENSE: PUERTO RICO, AMERICAN EXPANSION, AND THE CONSTITUTION (Christina Duffy Burnett & Burke Marshall eds. 2001). But see Christina Duffy Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. CHI. L. REV. 797 (2005). 72

See Martin, Graduated Application, supra note 68.

21


common. Can we develop a workable model of intermediate protection, at least to apply where U.S. action overseas entails fundamental or prolonged intrusions on liberty or bodily integrity? Certain beginnings of such an approach were marked out by the concurring opinions of Justices Harlan and Frankfurter in Reid v. Covert, where their votes were crucial to the result, because the more categorical plurality opinion spoke for only four justices.73 Justice Kennedy seemed to have in mind a similar model when he provided the crucial fifth vote in United States v. Verdugo-Urquidez, which held that the Fourth Amendment did not require the suppression of evidence obtained as the result of a warrantless search of the defendant’s home in Mexico by U.S. agents.74 Professor Gerald Neuman has labeled this the “global due process” approach, because exact application of rights under this methodology turns on a balancing of several different contextual factors.75 Multi-factor balancing is problematic and unpredictable, as Neuman notes, and the Court and the academy have not taken us very far since then in showing how this could work.76 The next round of detainee cases may reveal the urgency of taking on that project.

73

354 U.S. at 3.

74

494 U.S. 259, 275-78 (1990). Justice Kennedy concurred in the opinion and judgment of the Court, but his rationale is markedly different from Justice Rehnquist’s opinion for the majority. Justice Stevens concurred only in the result. His one-paragraph explanation seems more in keeping with the Harlan approach. Id. at 279. Three justices dissented. 75 See Gerald L. Neuman, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW 92-93, 102-03, 113-17 (1996). 76

See Gerald L. Neuman, Extraterritorial Rights and Constitutional Methodology after Rasul v. Bush, 153 U.Pa.L. Rev. 2073, 2076-77, 2083 (2005).

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