TO MANY OBSERVERS, a January 8 decision by the US Court of Appeals for the Fourth Circuit — the most pro-government appeals court in the land — was disastrous for civil liberties. On the face of it, it’s not hard to see why. The court ruled that an American citizen captured abroad may be designated, by American military authorities acting under the president’s authority, an "enemy combatant." The court ruled further that he or she may be held captive, with neither formal charges nor a trial, for the duration of the war on terrorism. Worst of all, it is up to the president alone, hinted the court, to determine when, if ever, that war is over.
Sounds pretty dire. Yet close examination of the ruling shows that the picture is not entirely bleak for American liberty in the age of terror. Improving the picture even more, another case with more favorable facts — the citizen was captured on American, not foreign, soil — has been decided more in the citizen’s favor by a lower federal court in New York City. That case is now wending its way toward the more-centrist appeals court in New York. In the event the two appeals courts reach different conclusions, it is likely that the Supreme Court will agree to resolve the conflict. And there’s good reason to think the nation’s highest court will be sensitive to government exaggeration and overreaching.
THE FOURTH Circuit, headquartered in Richmond, Virginia, decided last month that Yaser Esam Hamdi, an American-born citizen captured in Afghanistan allegedly fighting for Taliban and Al Qaeda forces, was entitled to a federal-court review of his indefinite detention, without trial, as a designated "enemy combatant." Although "captured in a zone of active combat in a foreign theater of conflict," Hamdi was entitled by virtue of his citizenship, ruled the court, to "challenge his summary detention for reasons of state necessity." This part of the January 8 ruling is consistent with an earlier decision in the case reported here last month (see "Still Standin’," News and Features, December 27, 2002).
What has some civil libertarians so worried is that the court then went on to qualify and limit Hamdi’s right to judicial review. The Fourth Circuit kept alive and available to Hamdi the writ of habeas corpus, by which citizens in the Anglo-American world have been able to challenge unlawful detentions since King John of England granted the Magna Carta in the 13th century. However, the Fourth Circuit judges went on to rule that in a habeas corpus proceeding by a declared enemy combatant, the government’s brief explanation justifying the detention cannot be probed and challenged by the detainee or his lawyers. In other words, Hamdi has a right to contest his detention, but he does not have a right to question the accuracy of the government’s summary justification for declaring him an enemy combatant. According such a limited right has the surface appearance of protecting the citizen while in fact giving the government very substantial power to get away with the worst abuses. If the Fourth Circuit’s view prevails in a possible review by the Supreme Court, pessimistic civil libertarians will be right to claim that the role of the federal courts in such detentions will be more illusion than fact.
The potential for government abuse under the Fourth Circuit’s formulation is clear, since the practical ability of citizens to contest indefinite detention without trial rests entirely on the government’s obligation to tell the truth when called upon by a habeas corpus court to justify imposing the label "enemy combatant." Since the government’s justification may not be tested — or even inquired into — by the prisoner, this procedure requires the judiciary to exercise extreme naïveté in its confidence that the government will never lie. History tells us that such confidence is misplaced.
Recall, for example, the period in the 1940s when, on orders of President Franklin Roosevelt, American citizens of Japanese ancestry living on the West Coast were detained, moved to inland areas away from the coast, and held in "relocation centers" (dubbed "concentration camps" by their critics, including dissenting Supreme Court justices). That program passed muster when a hotly divided Supreme Court took at face value assertions by the military (conveyed to the Court by the Justice Department) that significant numbers of American citizens of Japanese ancestry could be engaged in subversive activities. The dangers these citizens posed to California military installations came to the Court partially in the form of secret factual submissions, as did the grounds for believing that some Japanese-Americans might commit sabotage.
Years after the war ended, historians determined that these assurances were either grossly overblown or fundamentally false. In fact, to a remarkable degree, first- and second-generation American citizens of Japanese ancestry were loyal to the United States, and some even fought valiantly abroad in a special unit — while their parents were forced to live in internment camps! Of more importance, in terms of the future of the Fourth Circuit’s ruling, is Chief Justice William Rehnquist’s view of this shameful episode in American constitutional history. In his 1998 study of civil liberties during wartime (All the Laws but One: Civil Liberties in Wartime, Knopf), Rehnquist, probably the most pro-government member of the current high court, wrote that the government’s evidence of the security risks posed by alleged Japanese-American disloyalty was "undoubtedly exaggerated" and based largely on anti-Japanese racial animosity. Rehnquist also thought it unfair to treat American citizens, in contrast to foreigners, in this fashion.
Yet despite such lessons in the history of executive prevarication before Congress, the courts, and the American people, the Fourth Circuit concluded that an American citizen captured during hostilities abroad may be detained indefinitely on the government’s virtually uncontested word. The court based its ruling on a single affidavit from Michael Mobbs, special adviser to the undersecretary of defense for policy, asserting that Hamdi was captured fighting in Afghanistan with an AK-47 rifle. The case made it to the Fourth Circuit appeals court when the lower-court judge, skeptical of Mobbs’s assertions, announced that he would hold a hearing to probe the truthfulness of the president’s classification of Hamdi as an enemy combatant. This assertion of judicial authority in the face of presidential and military judgments went too far, according to the circuit court. It would be unseemly and unconstitutional, it ruled, for the judiciary to delve beneath the surface in such a situation during a time of war. A factual review of the president’s justification for holding Hamdi as an enemy combatant might entail "disclosure of sensitive intelligence" and "an excavation of facts buried under the rubble of war." Such a procedure would exact a cost "in terms of the efficiency and morale of American forces." What the court failed to note, of course, was that a searching inquiry of presidential and military factual assertions might disclose the kinds of "undoubtedly exaggerated" statements Justice Rehnquist concluded the military fed the federal courts to justify the detention of Japanese-American citizens during World War II.
Still, the Hamdi case was not an unmitigated disaster. The Court did, after all, assert the authority of the federal courts to review, even if in a rather perfunctory manner, the legality of such a detention. This means, at the very least, that an American citizen designated an enemy combatant cannot be held incommunicado without some access to the courts, however limited. This is no small achievement, since Hamdi was in fact being held incommunicado in the Norfolk, Virginia, naval brig; it was his father who filed the habeas corpus petition on his behalf. Presumably, the Fourth Circuit’s ruling will at least deter the administration and military from depriving such prisoners of a pencil, paper, postage stamp, and the address of the nearest federal court.
THE WORST features of the Fourth Circuit ruling in the Hamdi case could be tempered in another quarter. The issue of federal-court access by an "enemy combatant" has come up in New York in a case that is simultaneously wending its way through the federal courts. As we reported in the December 27 issue, New York federal-district-court judge Michael Mukasey last December overruled Attorney General Ashcroft’s Department of Justice and insisted that Jose Padilla — an American citizen designated an enemy combatant for allegedly planning to explode a radioactive "dirty bomb" somewhere in the country and currently being held at the American naval base in Guantánamo Bay, Cuba — be allowed access to a lawyer. Legal counsel was essential, ruled Judge Mukasey, to enable Padilla to challenge in a habeas corpus proceeding the legality of his detention. The government has asked Mukasey to reconsider his ruling; the Justice Department’s purported justification for keeping Padilla and his lawyer separated is that Padilla would use his lawyers to transmit messages to fellow terrorists on the outside, even if the lawyers don’t realize they are being so used. Judge Mukasey has announced that giving Padilla access to a lawyer is the first step in a process, the details of which the judge has yet to work out, that would allow Padilla to challenge the presidential designation "enemy combatant."
Interestingly, the Fourth Circuit noted the pending Padilla case in New York and asserted that it is possible for Padilla to win and Hamdi to lose. How? An American citizen captured on American rather than foreign soil, noted the Hamdi opinion, might be in a much stronger legal position to challenge his "enemy combatant" designation than a citizen detained "during a combat operation undertaken in a foreign country" and where a determination has been made "by the executive that the citizen was allied with enemy forces."
And so a number of important, yet procedurally complex, questions are up in the air, with two federal courts so far taking different approaches. Much depends, of course, on what the Second Circuit appeals court will do with Judge Mukasey’s Padilla ruling, and what the Supreme Court might do if it decides to jump into the fray. What we do know so far, however, is that both the pro-government Fourth Circuit in Virginia and a more moderate lower federal court in New York agree that the federal courts have both the authority and the duty to exercise some supervision over the president’s use of power as commander in chief to imprison citizens indefinitely, with neither charges nor a trial. The degree of such supervision may be slight or may be more significant, depending on how the Supreme Court ultimately resolves the matter. The issue will likely be determined on the basis of how much the courts, and indeed the American people, have really learned about the extent to which we can safely rely on what our government says to justify exercise of its powers. As George Santayana famously observed, "those who cannot remember the past are condemned to repeat it."
Harvey A. Silverglate is a partner in the law firm of Silverglate & Good and co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999).