The United Kingdom and the United States: Civil Liberties in the Age of Terror
The Labour Party Government of the United Kingdom, led by Prime Minister Tony Blair, has proposed this past week a new anti-terrorism law that opponents charge will destroy the right of habeas corpus and curtail centuries-old civil liberties in the birthplace of the Common Law. Writing in yesterday's Daily Telegraph, Conservative MP and editor of The Spectator Boris Johnson charged that:
Without knowing the exact words he is using to justify his actions…, I propose that we begin by pointing out that he is the first peacetime prime minister to curtail the right to habeas corpus. He is giving the Home Secretary astonishing powers to decide that you or I may be locked in our homes; that our possessions may be confiscated; that we may be debarred from contact with the outside world; that we may be forbidden from using the internet or the telephone - in a word, that we may be incarcerated.
Under the Bill that went through the Commons last night, the Home Secretary (the chap with the big ears and the white bumfluff beard) will be able to inflict this incarceration indefinitely upon any British person that he suspects - on the basis of we are not allowed to know what evidence - of being involved in "terrorism-related activities". Above all, he will be able to do this without any obligation to bring that person to trial, and there, I think, he goes too far.
The Prevention of Terrorism Bill was carried in Commons by a vote of 309-233, with the Government suffering over 32 Labour votes against, including from six former government ministers. Home Secretary Charles Clark (he of the “bumfluff” beard, according to Johnson) had a rough night in the chamber, getting hammered on the Bill and the haste with which the Government rammed it through Parliament by a rare union of Conservatives, Liberal Democrats and numerous Labour backbenchers. Conservative leader Michael Howard claimed that Blair was using national security “for political point-scoring” and was “steamrollering” the powers through Parliament. Former Labour health minister Frank Dobson declared that he could not support a law that allows the imprisonment of a British citizen “on the say-so of the Home Secretary.”
In one of its lead editorials, the sober and reliable Daily Telegraph concluded that problems with Bill:
…go way beyond party political considerations, to the heart of British law. For eight centuries, habeas corpus and the right to a fair trial, with conviction by the judiciary as opposed to the executive, have been cornerstones of our judicial system. The Prevention of Terrorism Bill takes those cornerstones away.
What on Earth is going on here?
All the Laws But One
The status of liberty in a liberal democracy in times of war is one of the most contentious political, moral and legal issues presented any political leader or jurist. Since, alone among nations, liberal democracies allow—must allow—dissent, argument and political activity directed against the policy of the state, including vital war policies, the threat of internal sedition, sabotage and, now, terrorism is much greater than that facing more authoritarian regimes.
The question has always been how to reconcile the need of the state to wage war effectively without overly curtailing vital civil rights. Or, to put it another way, how to wage a war for our country without losing the liberty that makes our country worth fighting for.
This debate is neither novel nor new, though it takes on a new and frightening resonance today in the age of terrorism. With the free movement of people, goods and services, both the U.K. and the U.S. are remarkably vulnerable to terrorist activity. How to secure each country from terrorist attacks from within is a daunting task for each respective government.
Contrary to what you may read in ACLU press releases, this issue is not unprecedented. During the Civil War, President Lincoln was presented with war-versus-liberty issues that strike the modern reader as eerily similar. At one point, faced with Confederate sabotage and mob action against Union troop movements by rail in Maryland, Lincoln ordered the detention of suspected Confederate agents and their supporters and suspended the right of habeas corpus in that federal district. When the Supreme Court objected, the President ignored their decision and declared that the Court was allowing “all the laws, but one, [to] go unexecuted, and the government itself go to pieces, lest that one be violated.”
In his interesting survey of that event, All the Laws But One: Civil Liberties in Wartime, Chief Justice William Rehnquist examines the history of this issue in American jurisprudence. As the book reveals, the issue has been dealt with in incredible detail in the U.S., dealing with issues as disparate as whether or not newspaper editorial cartoons may be seditious, to whether members of an ethnic group can be excluded from a section of the United States by military order when a nation-state of that ethnicity declares war on the U.S., to whether speaking against the war in front of a draft board office is permissible, and to whether anti-war t-shirts may be worn on public school campuses.
The end result is a typical of U.S. Common Law jurisprudence; again and again, reasonable jurists have attempted to strike a balance between the needs of the executive and the rights of the individual. 9.11 reintroduced Americans, and Britons as well, to a wealth of jurisprudence that had lain dormant for many, many years. So long has the executive not used these rights that the most serious problem both governments now face is explaining to its people that it has always had both the power and the tools to detain outside of the criminal justice system.
It’s a Legal Matter, Baby
Listen to a modern debate about the USA Patriot Act or of the detainees at Guantanamo Bay and you’re more than likely to hear two sides talking right past each other. The reason for this is that opponents of the President’s actions (let’s call them “civil libertarians” for short in this context) cannot conceive that the state has the authority to hold suspects for war-related activity outside of the normal criminal justice system. As the Bush Administration has successfully argued, again and again, enemy combatants, even if citizens of the United States, are simply not subject to the criminal law any more than German troops in Normandy were on D-Day.
This is why all the civil libertarian talk about jury trials, judicial review, the right to counsel and to bail and all the other normal accoutrements of modern criminal procedure is all beside the point. All those norms, as important as they are in their context, simply do not apply.
To understand why, you have to understand the story of seven devoted Nazi agents who came ashore in the dead of night in Long Island, NY, and near Jacksonville, Florida, in 1942. Their mission: to sabotage America’s war industries and transport infrastructure using any means necessary. In addition to being a devoted National Socialist, ready and willing to die for the cause, one of them, named Haupt, was also a citizen of the United States.
Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 51, 87 L.Ed. 7 (1942)
The FBI quickly rounded up the Nazi agents and President Roosevelt ordered them held and tried by a special military commission. Roosevelt ordered that the jurisdiction of the new special military tribunals extended to:
…all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals.
The agents filed a petition of habeas corpus to challenge their military detention under the military commission. The petitioners’ arguments will sound familiar to anyone who has followed the Guantanamo debate:
Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case it is urged that the President's Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are illegal and void. (Emphasis added).
Here the executive branch was arresting, detaining, trying and then possibly executing people caught in the United States, all without the judicial branch ever being involved. Did the President really have that type of power?
A unanimous Supreme Court held that he did:
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
Since the German soldiers had discarded their uniforms and were secretly planning sabotage, they were “enemy combatants,” who, as such, are subject to military jurisdiction (i.e. the President’s, as commander-in-chief). Civilian criminal law simply does not apply in this situation.
But what of Haupt? Surely, the President cannot jail and indefinitely hold a U.S. citizen in the United States without a trail, a lawyer, a hearing, on only his order, right?
Wrong. The Court explained:
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. (Emphasis added).
Since 1942, until late 2004, it was the law of the United States that the President could order the arrest, detention and trial by military tribunal of any enemy combatant. We know you’ve all heard the talking heads and the “legal experts” express amazement that the President could have this kind of power. When the President began talking about “enemy combatants” in connection with the Padilla and Hamdi cases, the MSM looked around in bewilderment (yet, it’s the President who is irredeemably stupid. Go figure). To its everlasting shame, the MSM failed to inform the American people about the facts, and actively mislead people into believing that Bush’s arguments were new and fanciful and had never been seen before.
Times change, however, and with the case of Yaser Esam Hamdi, a U.S. citizen caught waging war against the U.S. on behalf of jihadist forces in Afghanistan, the Supreme Court decided it needed to add its own contribution to the long line of civil liberties in wartime jurisprudence. As much as we wish the Court could have dealt with Hamdi by simply following Justice Thomas’ finding that “this detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision,” they did not.
The same MSM and gaggle of academics that proclaimed the Bush Administration’s position on enemy combatants “illegal” and “without precedent” painted the Hamdi decision as a staggering blow against Bush’s claimed powers. A closer look reveals that nothing could be further from the truth.
Hamdi v. Rumsfeld, __ U.S. __ (2004)
First, an important note about what kind of decision Hamdi is. Typical of today’s Supreme Court decisions, Hamdi comes in sections, with each individual justice giving or withholding his or her support for each section. This makes it difficult ofttimes to determine whether or not an opinion is actually a majority opinion. Here, four justices, led by Justice O’Connor found that the President had the power to hold and try Hamdi as an enemy combatant, but that new due process procedures were required under modern-day circumstances. Two further justices, the reliably left-wing Ginsburg and Souter, held that the executive had no power to hold Hamdi whatsoever, but joined the other four since they agreed with them insofar as the plurality held that some type of hearing was required. Three others, the reliably right-wing Scalia and Thomas, plus Stewart, dissented, with Scalia arguing the hardest that the government did not have the authority to detain Hamdi. (But, as we all know, Scalia just writes whatever his Republican masters demand of him on duck-hunting trips, right?). In our opinion, only Thomas really got the case right, but that’s not unusual. (But, wait doesn’t Thomas always vote for whatever Scalia votes for?)
Justice O’Connor therefore delivered a plurality opinion of the court with the full support of four justices and the qualified support of two further. These days, that’s about as good a “majority” opinion as one can expect. While we are tempted to join our conservative friends and rail against Justice O’Connor’s maddening tendency to “split the difference” and go right down the middle in cases, we feel that she actually did the Nation a vital service in this instance. To see why we think that, a detailed look at her holding is required.
Let us start with the facts. Hamdi was born in Louisiana in 1980 and moved with his parents as a child to Saudi Arabia. By 2001, Hamdi was a resident of Afghanistan. Captured while fighting on behalf of the fascist Taliban movement by the Northern Alliance, he was transferred first to U.S. military detention in Guantanamo and then to the Naval Brig in Norfolk, Virginia when it was discovered that he was an American. His detention in Virginia was on the order of the President, who declared Hamdi an “enemy combatant;” the executive declared it had the right to hold him until it decided what to do with him. Hamdi’s father filed a habeas corpus petition, arguing:
…that he has had no contact with his son since the Government took custody of him in 2001, and that the Government has held his son "without access to legal counsel or notice of any charges pending against him." The petition contends that Hamdi's detention was not legally authorized. It argues that, "[a]s an American citizen, ... Hamdi enjoys the full protections of the Constitution," and that Hamdi's detention in the United States without charges, access to an impartial tribunal, or assistance of counsel "violated and continue[s] to violate the Fifth and Fourteenth Amendments to the United States Constitution." The habeas petition asks that the court, among other things, (1) appoint counsel for Hamdi; (2) order respondents to cease interrogating him; (3) declare that he is being held in violation of the Fifth and Fourteenth Amendments; (4) "[t]o the extent Respondents contest any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations"; and (5) order that Hamdi be released from his "unlawful custody." (Citations removed).
Sound familiar? The elder Hamdi’s petition is almost identical to that presented on behalf of the Nazi detainees in Ex parte Quirin. Stripped of the legalese, Hamdi was arguing that he could not be held outside of the normal criminal justice system and, further, that he was entitled to the full array of rights and protections afforded to criminal defendants under our modern system of criminal procedure.
The Court saw this clearly; that’s why job one for the majority was to deal with and distinguish Ex parte Quirin. They didn’t succeed to our satisfaction, yet, at the same time, one can see the almost devilish cleverness in it:
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. [Remember this, it will be critically important later on...there's no quiz, though, we promise].
* * *
There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States,"; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict. (Emphasis added, citations removed).
This passage is typical of the Court’s approach in Hamdi. It reaffirmed the central holding of Quirin while adding enough language for the court to hang its holding on. Having reaffirmed-Quirin-but-with-some-qualifications, the Court went on to craft its own solution to the larger civil liberties issue. As it has so often in the past, the Supreme Court sought to balance what are, at core, two competing fundamental interests, each of the highest order of importance. We quote the holding at length, since it is important to understand how cognizant the Court was of the Executive’s right and authority to wage war:
Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. 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.
* * *
With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, "the risk of erroneous deprivation" of a detainee's liberty interest is unacceptably high under the Government's proposed rule, while some of the "additional or substitute procedural safeguards" suggested by the District Court are unwarranted in light of their limited "probable value" and the burdens they may impose on the military in such cases.
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. "For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' These essential constitutional promises may not be eroded.
At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews, process of this sort would sufficiently address the "risk of erroneous deprivation" of a detainee's liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government.
As usual, the MSM got the holding and its import completely wrong. Painted as a victory for Hamdi and the civil libertarian crowd, the opinion actually gives them only cold comfort. The hearing right the Court establishes here is still solely a creature of the Executive branch, complete with a rebuttable presumption that the government’s classification of the detainee as an enemy combatant is proper. In fact, the Court went on to suggest to the executive that:
There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.
Wink, wink; hint, hint. The Court might as well have just come out and said “you all in the Executive can handle this new hearing requirement through the military courts already in place, no need to bother us in the Judiciary so long as you take care of business!”
You can call that whatever you’d like, but one thing it most assuredly is not is the normal criminal justice system. Basically, the Court affirmed the central holding of Quirin and simply added a further procedural requirement forcing the military to hold a preliminary hearing at which time the detainee can argue he’s neither the enemy nor a combatant. Good luck with that. After that, the normal military tribunal process upheld in Quirin will take its course.
Sealing Hamdi’s fate was the attached issue of the seeming indefiniteness of his detention. Since the War on Terror is unlikely to end in a formal peace treaty, as the Government readily admitted, holding enemy combatants “for the duration of hostilities” could mean for life. Interesting academic debating point, but the Court wasn’t interested. Since Hamdi was captured fighting for the Taliban in Afghanistan:
[t]he United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized….
Since U.S. forces are in Afghanistan for the long haul, don’t expect to see Hamdi at the local mall any time soon.
O’Connor’s compromise thus managed to affirm the central holding of Quirin while allowing a due process hearing at which the detainee may challenge, with the assistance of counsel (Lynne Stewart, line one please!), his status as an enemy combatant. The resulting holding is something the Executive can live with, especially since it can be satisfied by the same military tribunal which will eventually try the detainees.
Hamdi may have rejected the government’s main argument, but it was no defeat for Bush.
London Calling
Which brings us back to Number 10, Downing Street. Tony Blair’s government’s former anti-terrorism legislation was struck down last year by the Law Lords, which is why his government rushed forward the new bill. In a Telegraph opinion piece companion to that of Boris Johnson quoted above, the PM described how the new procedures are to work:
In drafting the Prevention of Terrorism Bill, which puts in place new measures to counter this threat, we have listened to the Law Lords, but also to our police and security chiefs. It gives the Home Secretary, acting on their advice, a broader range of powers to prevent and disrupt potential terrorist activity. It allows restrictions to be placed on people where we have reasonable suspicion of their involvement in terrorist activity - on their movement, on their communications, on who they meet and where they live. Should our security services believe in future it is necessary, it could also include a requirement on individuals to remain in a particular place.
* * *
I reject completely the allegation that this is a fundamental attack on long-standing civil liberties. As the Bill makes clear, no one will be deprived of their liberty without this being approved within days - at most seven days - by a senior judge in the High Court, following careful consideration of all of the evidence linking them to terrorist activity. And this initial hearing will then be followed by a full High Court hearing. Even with less intrusive control orders, suspects will have full rights of appeal to the High Court.
This is a far cry from Johnson’s contention about the death of habeas corpus. And the fact that Johnson is still talking about “trials”—a civil and criminal procedure not appropriate to wartime detentions—shows that he, along with the ACLU and most law professors in the States, simply do not understand that the criminal law and its procedures simply do not apply to such cases.
Johnson is a good man, but he, like the Tories in general, are so blinded by Tony-Hatred that they can’t see that the PM’s proposal is, in essence, a compromise, a way of balancing the need to detain terrorism suspects immediately with the need to safeguard essential civil liberties. In fact, the British proposal goes further toward the civil libertarian side of the aisle by providing for judicial review which, as we saw above, Hamdi doesn’t necessarily mandate in the U.S.
What has happened here is that our two governments, both Common Law countries, both with a long record of respecting civil liberties, have come, each in its own way, to a resolution of a conflict between civil liberties and the necessities of national security. It must be admitted: a person, any person, can be declared an enemy combatant or a terrorist on the mere order of the executive and detained. However, the executive must then immediately satisfy an independent decisionmaker that the order was given on the basis of satisfactory evidence. Both nations have decided, again each in its own way, that the normal criminal system is not the right forum for such detentions and hearings, for largely the same reason.
We think this is no surprise. While we understand the perspective of the civil libertarians, we also understand the perspective of the executive. The nature of the threat poses a unique challenge to our two free nations, and our governments must have the tools to effectively combat it.
We cannot stand aside and let all the laws but one go unexecuted; as the Prime Minister so aptly put it, there is no greater civil liberty than to live free from terrorist attack. Ignore the extremists on both sides; liberal democracy has once again shown its capacity to fight fiercely while safeguarding the liberty that is so precious to us.
Without knowing the exact words he is using to justify his actions…, I propose that we begin by pointing out that he is the first peacetime prime minister to curtail the right to habeas corpus. He is giving the Home Secretary astonishing powers to decide that you or I may be locked in our homes; that our possessions may be confiscated; that we may be debarred from contact with the outside world; that we may be forbidden from using the internet or the telephone - in a word, that we may be incarcerated.
Under the Bill that went through the Commons last night, the Home Secretary (the chap with the big ears and the white bumfluff beard) will be able to inflict this incarceration indefinitely upon any British person that he suspects - on the basis of we are not allowed to know what evidence - of being involved in "terrorism-related activities". Above all, he will be able to do this without any obligation to bring that person to trial, and there, I think, he goes too far.
The Prevention of Terrorism Bill was carried in Commons by a vote of 309-233, with the Government suffering over 32 Labour votes against, including from six former government ministers. Home Secretary Charles Clark (he of the “bumfluff” beard, according to Johnson) had a rough night in the chamber, getting hammered on the Bill and the haste with which the Government rammed it through Parliament by a rare union of Conservatives, Liberal Democrats and numerous Labour backbenchers. Conservative leader Michael Howard claimed that Blair was using national security “for political point-scoring” and was “steamrollering” the powers through Parliament. Former Labour health minister Frank Dobson declared that he could not support a law that allows the imprisonment of a British citizen “on the say-so of the Home Secretary.”
In one of its lead editorials, the sober and reliable Daily Telegraph concluded that problems with Bill:
…go way beyond party political considerations, to the heart of British law. For eight centuries, habeas corpus and the right to a fair trial, with conviction by the judiciary as opposed to the executive, have been cornerstones of our judicial system. The Prevention of Terrorism Bill takes those cornerstones away.
What on Earth is going on here?
All the Laws But One
The status of liberty in a liberal democracy in times of war is one of the most contentious political, moral and legal issues presented any political leader or jurist. Since, alone among nations, liberal democracies allow—must allow—dissent, argument and political activity directed against the policy of the state, including vital war policies, the threat of internal sedition, sabotage and, now, terrorism is much greater than that facing more authoritarian regimes.
The question has always been how to reconcile the need of the state to wage war effectively without overly curtailing vital civil rights. Or, to put it another way, how to wage a war for our country without losing the liberty that makes our country worth fighting for.
This debate is neither novel nor new, though it takes on a new and frightening resonance today in the age of terrorism. With the free movement of people, goods and services, both the U.K. and the U.S. are remarkably vulnerable to terrorist activity. How to secure each country from terrorist attacks from within is a daunting task for each respective government.
Contrary to what you may read in ACLU press releases, this issue is not unprecedented. During the Civil War, President Lincoln was presented with war-versus-liberty issues that strike the modern reader as eerily similar. At one point, faced with Confederate sabotage and mob action against Union troop movements by rail in Maryland, Lincoln ordered the detention of suspected Confederate agents and their supporters and suspended the right of habeas corpus in that federal district. When the Supreme Court objected, the President ignored their decision and declared that the Court was allowing “all the laws, but one, [to] go unexecuted, and the government itself go to pieces, lest that one be violated.”
In his interesting survey of that event, All the Laws But One: Civil Liberties in Wartime, Chief Justice William Rehnquist examines the history of this issue in American jurisprudence. As the book reveals, the issue has been dealt with in incredible detail in the U.S., dealing with issues as disparate as whether or not newspaper editorial cartoons may be seditious, to whether members of an ethnic group can be excluded from a section of the United States by military order when a nation-state of that ethnicity declares war on the U.S., to whether speaking against the war in front of a draft board office is permissible, and to whether anti-war t-shirts may be worn on public school campuses.
The end result is a typical of U.S. Common Law jurisprudence; again and again, reasonable jurists have attempted to strike a balance between the needs of the executive and the rights of the individual. 9.11 reintroduced Americans, and Britons as well, to a wealth of jurisprudence that had lain dormant for many, many years. So long has the executive not used these rights that the most serious problem both governments now face is explaining to its people that it has always had both the power and the tools to detain outside of the criminal justice system.
It’s a Legal Matter, Baby
Listen to a modern debate about the USA Patriot Act or of the detainees at Guantanamo Bay and you’re more than likely to hear two sides talking right past each other. The reason for this is that opponents of the President’s actions (let’s call them “civil libertarians” for short in this context) cannot conceive that the state has the authority to hold suspects for war-related activity outside of the normal criminal justice system. As the Bush Administration has successfully argued, again and again, enemy combatants, even if citizens of the United States, are simply not subject to the criminal law any more than German troops in Normandy were on D-Day.
This is why all the civil libertarian talk about jury trials, judicial review, the right to counsel and to bail and all the other normal accoutrements of modern criminal procedure is all beside the point. All those norms, as important as they are in their context, simply do not apply.
To understand why, you have to understand the story of seven devoted Nazi agents who came ashore in the dead of night in Long Island, NY, and near Jacksonville, Florida, in 1942. Their mission: to sabotage America’s war industries and transport infrastructure using any means necessary. In addition to being a devoted National Socialist, ready and willing to die for the cause, one of them, named Haupt, was also a citizen of the United States.
Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 51, 87 L.Ed. 7 (1942)
The FBI quickly rounded up the Nazi agents and President Roosevelt ordered them held and tried by a special military commission. Roosevelt ordered that the jurisdiction of the new special military tribunals extended to:
…all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals.
The agents filed a petition of habeas corpus to challenge their military detention under the military commission. The petitioners’ arguments will sound familiar to anyone who has followed the Guantanamo debate:
Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case it is urged that the President's Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are illegal and void. (Emphasis added).
Here the executive branch was arresting, detaining, trying and then possibly executing people caught in the United States, all without the judicial branch ever being involved. Did the President really have that type of power?
A unanimous Supreme Court held that he did:
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
Since the German soldiers had discarded their uniforms and were secretly planning sabotage, they were “enemy combatants,” who, as such, are subject to military jurisdiction (i.e. the President’s, as commander-in-chief). Civilian criminal law simply does not apply in this situation.
But what of Haupt? Surely, the President cannot jail and indefinitely hold a U.S. citizen in the United States without a trail, a lawyer, a hearing, on only his order, right?
Wrong. The Court explained:
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. (Emphasis added).
Since 1942, until late 2004, it was the law of the United States that the President could order the arrest, detention and trial by military tribunal of any enemy combatant. We know you’ve all heard the talking heads and the “legal experts” express amazement that the President could have this kind of power. When the President began talking about “enemy combatants” in connection with the Padilla and Hamdi cases, the MSM looked around in bewilderment (yet, it’s the President who is irredeemably stupid. Go figure). To its everlasting shame, the MSM failed to inform the American people about the facts, and actively mislead people into believing that Bush’s arguments were new and fanciful and had never been seen before.
Times change, however, and with the case of Yaser Esam Hamdi, a U.S. citizen caught waging war against the U.S. on behalf of jihadist forces in Afghanistan, the Supreme Court decided it needed to add its own contribution to the long line of civil liberties in wartime jurisprudence. As much as we wish the Court could have dealt with Hamdi by simply following Justice Thomas’ finding that “this detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision,” they did not.
The same MSM and gaggle of academics that proclaimed the Bush Administration’s position on enemy combatants “illegal” and “without precedent” painted the Hamdi decision as a staggering blow against Bush’s claimed powers. A closer look reveals that nothing could be further from the truth.
Hamdi v. Rumsfeld, __ U.S. __ (2004)
First, an important note about what kind of decision Hamdi is. Typical of today’s Supreme Court decisions, Hamdi comes in sections, with each individual justice giving or withholding his or her support for each section. This makes it difficult ofttimes to determine whether or not an opinion is actually a majority opinion. Here, four justices, led by Justice O’Connor found that the President had the power to hold and try Hamdi as an enemy combatant, but that new due process procedures were required under modern-day circumstances. Two further justices, the reliably left-wing Ginsburg and Souter, held that the executive had no power to hold Hamdi whatsoever, but joined the other four since they agreed with them insofar as the plurality held that some type of hearing was required. Three others, the reliably right-wing Scalia and Thomas, plus Stewart, dissented, with Scalia arguing the hardest that the government did not have the authority to detain Hamdi. (But, as we all know, Scalia just writes whatever his Republican masters demand of him on duck-hunting trips, right?). In our opinion, only Thomas really got the case right, but that’s not unusual. (But, wait doesn’t Thomas always vote for whatever Scalia votes for?)
Justice O’Connor therefore delivered a plurality opinion of the court with the full support of four justices and the qualified support of two further. These days, that’s about as good a “majority” opinion as one can expect. While we are tempted to join our conservative friends and rail against Justice O’Connor’s maddening tendency to “split the difference” and go right down the middle in cases, we feel that she actually did the Nation a vital service in this instance. To see why we think that, a detailed look at her holding is required.
Let us start with the facts. Hamdi was born in Louisiana in 1980 and moved with his parents as a child to Saudi Arabia. By 2001, Hamdi was a resident of Afghanistan. Captured while fighting on behalf of the fascist Taliban movement by the Northern Alliance, he was transferred first to U.S. military detention in Guantanamo and then to the Naval Brig in Norfolk, Virginia when it was discovered that he was an American. His detention in Virginia was on the order of the President, who declared Hamdi an “enemy combatant;” the executive declared it had the right to hold him until it decided what to do with him. Hamdi’s father filed a habeas corpus petition, arguing:
…that he has had no contact with his son since the Government took custody of him in 2001, and that the Government has held his son "without access to legal counsel or notice of any charges pending against him." The petition contends that Hamdi's detention was not legally authorized. It argues that, "[a]s an American citizen, ... Hamdi enjoys the full protections of the Constitution," and that Hamdi's detention in the United States without charges, access to an impartial tribunal, or assistance of counsel "violated and continue[s] to violate the Fifth and Fourteenth Amendments to the United States Constitution." The habeas petition asks that the court, among other things, (1) appoint counsel for Hamdi; (2) order respondents to cease interrogating him; (3) declare that he is being held in violation of the Fifth and Fourteenth Amendments; (4) "[t]o the extent Respondents contest any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations"; and (5) order that Hamdi be released from his "unlawful custody." (Citations removed).
Sound familiar? The elder Hamdi’s petition is almost identical to that presented on behalf of the Nazi detainees in Ex parte Quirin. Stripped of the legalese, Hamdi was arguing that he could not be held outside of the normal criminal justice system and, further, that he was entitled to the full array of rights and protections afforded to criminal defendants under our modern system of criminal procedure.
The Court saw this clearly; that’s why job one for the majority was to deal with and distinguish Ex parte Quirin. They didn’t succeed to our satisfaction, yet, at the same time, one can see the almost devilish cleverness in it:
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. [Remember this, it will be critically important later on...there's no quiz, though, we promise].
* * *
There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States,"; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict. (Emphasis added, citations removed).
This passage is typical of the Court’s approach in Hamdi. It reaffirmed the central holding of Quirin while adding enough language for the court to hang its holding on. Having reaffirmed-Quirin-but-with-some-qualifications, the Court went on to craft its own solution to the larger civil liberties issue. As it has so often in the past, the Supreme Court sought to balance what are, at core, two competing fundamental interests, each of the highest order of importance. We quote the holding at length, since it is important to understand how cognizant the Court was of the Executive’s right and authority to wage war:
Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. 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.
* * *
With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, "the risk of erroneous deprivation" of a detainee's liberty interest is unacceptably high under the Government's proposed rule, while some of the "additional or substitute procedural safeguards" suggested by the District Court are unwarranted in light of their limited "probable value" and the burdens they may impose on the military in such cases.
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. "For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' These essential constitutional promises may not be eroded.
At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews, process of this sort would sufficiently address the "risk of erroneous deprivation" of a detainee's liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government.
As usual, the MSM got the holding and its import completely wrong. Painted as a victory for Hamdi and the civil libertarian crowd, the opinion actually gives them only cold comfort. The hearing right the Court establishes here is still solely a creature of the Executive branch, complete with a rebuttable presumption that the government’s classification of the detainee as an enemy combatant is proper. In fact, the Court went on to suggest to the executive that:
There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.
Wink, wink; hint, hint. The Court might as well have just come out and said “you all in the Executive can handle this new hearing requirement through the military courts already in place, no need to bother us in the Judiciary so long as you take care of business!”
You can call that whatever you’d like, but one thing it most assuredly is not is the normal criminal justice system. Basically, the Court affirmed the central holding of Quirin and simply added a further procedural requirement forcing the military to hold a preliminary hearing at which time the detainee can argue he’s neither the enemy nor a combatant. Good luck with that. After that, the normal military tribunal process upheld in Quirin will take its course.
Sealing Hamdi’s fate was the attached issue of the seeming indefiniteness of his detention. Since the War on Terror is unlikely to end in a formal peace treaty, as the Government readily admitted, holding enemy combatants “for the duration of hostilities” could mean for life. Interesting academic debating point, but the Court wasn’t interested. Since Hamdi was captured fighting for the Taliban in Afghanistan:
[t]he United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized….
Since U.S. forces are in Afghanistan for the long haul, don’t expect to see Hamdi at the local mall any time soon.
O’Connor’s compromise thus managed to affirm the central holding of Quirin while allowing a due process hearing at which the detainee may challenge, with the assistance of counsel (Lynne Stewart, line one please!), his status as an enemy combatant. The resulting holding is something the Executive can live with, especially since it can be satisfied by the same military tribunal which will eventually try the detainees.
Hamdi may have rejected the government’s main argument, but it was no defeat for Bush.
London Calling
Which brings us back to Number 10, Downing Street. Tony Blair’s government’s former anti-terrorism legislation was struck down last year by the Law Lords, which is why his government rushed forward the new bill. In a Telegraph opinion piece companion to that of Boris Johnson quoted above, the PM described how the new procedures are to work:
In drafting the Prevention of Terrorism Bill, which puts in place new measures to counter this threat, we have listened to the Law Lords, but also to our police and security chiefs. It gives the Home Secretary, acting on their advice, a broader range of powers to prevent and disrupt potential terrorist activity. It allows restrictions to be placed on people where we have reasonable suspicion of their involvement in terrorist activity - on their movement, on their communications, on who they meet and where they live. Should our security services believe in future it is necessary, it could also include a requirement on individuals to remain in a particular place.
* * *
I reject completely the allegation that this is a fundamental attack on long-standing civil liberties. As the Bill makes clear, no one will be deprived of their liberty without this being approved within days - at most seven days - by a senior judge in the High Court, following careful consideration of all of the evidence linking them to terrorist activity. And this initial hearing will then be followed by a full High Court hearing. Even with less intrusive control orders, suspects will have full rights of appeal to the High Court.
This is a far cry from Johnson’s contention about the death of habeas corpus. And the fact that Johnson is still talking about “trials”—a civil and criminal procedure not appropriate to wartime detentions—shows that he, along with the ACLU and most law professors in the States, simply do not understand that the criminal law and its procedures simply do not apply to such cases.
Johnson is a good man, but he, like the Tories in general, are so blinded by Tony-Hatred that they can’t see that the PM’s proposal is, in essence, a compromise, a way of balancing the need to detain terrorism suspects immediately with the need to safeguard essential civil liberties. In fact, the British proposal goes further toward the civil libertarian side of the aisle by providing for judicial review which, as we saw above, Hamdi doesn’t necessarily mandate in the U.S.
What has happened here is that our two governments, both Common Law countries, both with a long record of respecting civil liberties, have come, each in its own way, to a resolution of a conflict between civil liberties and the necessities of national security. It must be admitted: a person, any person, can be declared an enemy combatant or a terrorist on the mere order of the executive and detained. However, the executive must then immediately satisfy an independent decisionmaker that the order was given on the basis of satisfactory evidence. Both nations have decided, again each in its own way, that the normal criminal system is not the right forum for such detentions and hearings, for largely the same reason.
We think this is no surprise. While we understand the perspective of the civil libertarians, we also understand the perspective of the executive. The nature of the threat poses a unique challenge to our two free nations, and our governments must have the tools to effectively combat it.
We cannot stand aside and let all the laws but one go unexecuted; as the Prime Minister so aptly put it, there is no greater civil liberty than to live free from terrorist attack. Ignore the extremists on both sides; liberal democracy has once again shown its capacity to fight fiercely while safeguarding the liberty that is so precious to us.
