Hardly a week goes by in the federal courts without some Justice Department lawyer filing a document or rising at a podium to proclaim "mission accomplished" on the legal battleground of the war on terrorism. Two Supreme Court rulings in June—widely interpreted as serious defeats for President Bush and the Pentagon—emerge repeatedly in the rhetoric of the government as encouragement to make even broader claims.
This is not merely public relations spin, or cowboy bravado: It is put forth as serious legal argument, grounded in a view that Bush administration lawyers have held since the first days after the terrorist attacks of Sept. 11, 2001. It is a claim of nearly limitless constitutional authority for the president to choose both the grand strategy and the particular tactics of waging war on terrorists, without intrusion by the courts. And the administration insists the Supreme Court has endorsed this claim.
In its broadest form, this legal argument has been used to justify the capture and years-long detention of so-called "enemy combatants" in military prisons or jails, with no legal rights whatsoever. And it was the argument in that breathtaking sweep that the Supreme Court refused to endorse in June, as to both U.S. citizens and noncitizens taken prisoner during the war. (Even the administration's favorite constitutional venue, the 4th U.S. Circuit Court of Appeals in Richmond, acting before the Supreme Court did, declined to endorse that argument without reservation.)
For citizens, the Supreme Court ruled that they have a right, before a "neutral" decision-maker, to contest their designation as an enemy combatant. That ruling was confined to citizens captured on foreign battlefields, in combat against U.S. forces. The court decided that Congress had authorized initial detention of those individuals, but it nevertheless ruled that they had a right to challenge the basis for their prolonged detention.
And, for noncitizens, the court ruled that all of the hundreds of prisoners being held at the U.S. Navy's prison camp at Guantanamo Bay, Cuba, have a right to go to a federal judge and demand that the government justify keeping them confined indefinitely. It implied strongly that they had a right to a lawyer to aid them in such a proceeding.
Justice Department lawyers, though, have spent the following months telling lower courts that the Supreme Court's action was not at all unfavorable to the government or to its claim to unchecked presidential authority. Any ambiguity, or any seeming opening, in what the court did in June has been routinely described as supportive of the commander in chief. A prime example: The court said that it would not rule on the claim that the president has constitutional authority, acting entirely on his own, to order detention of combatants. But that reticence, government attorneys have argued, "cannot reasonably be read to signal disagreement or doubt concerning the president's authority under Article II"—that is, his unchecked "inherent" war power.
These post-decision arguments amount to a constitutional development of historic proportions, but that development continues to unfold with only the most intermittent, and usually quite superficial, coverage in the mainstream media. Throughout the summer and fall, for example, the story was simply ignored by many major news organizations.
The government attorneys' treatment of the court's decision on the rights of citizen combatants well demonstrates the lengths to which this new advocacy would go. Those lawyers have relied most heavily in their follow-up documents about American combatants on a dissenting opinion in June by Justice Clarence Thomas as the authoritative source of constitutional meaning. Thomas was the only member of the court to accept the government's full argument about presidential authority to detain citizens, so the Justice Department treats it as validation of its inherent powers argument.
Moreover, the government has said that the Supreme Court did not mean to confine its ruling allowing detention of citizen combatants to those captured as active soldiers in a combat zone abroad, but the ruling is properly understood as permission to seize and detain such individuals anywhere in the world, including O'Hare Airport in Chicago—as in the case of citizen Jose Padilla.
Padilla, the government told a federal court in Charleston, S.C., in November, "may not have been captured abroad in a 'zone of combat,' " but he was wrong "in assuming his detention in the customs area at O'Hare necessarily constitutes an arrest 'in' the United States." He was "never permitted to leave the inspection area and join the general public."
The Justice Department's lawyers have been even more inventive in their reading of the Supreme Court's ruling dealing with the rights of foreign nationals detained at Guantanamo Bay. The court, they argued in October, "did not overturn settled precedent that our Constitution affords no rights to aliens held abroad, or that the treaty and convention provisions relied upon by [detainees] are somehow actionable in court." What the court did do, they went on to say, was merely grant a narrow right to file a challenge in federal court. But, once filed, such a case must simply be dismissed outright because they are entitled to no remedy at all for their detention and confinement.
The detainees, the government complained, "demand an unprecedented judicial intervention into the conduct of war operations, based on the extraordinary, and unfounded, proposition that aliens captured outside this country's borders and detained outside the territorial sovereignty of the United States can claim rights under the U.S. Constitution."
But, if the courts should disagree, and allow the detainees some guarantee of "due process"—as the Supreme Court apparently already has done, the government contends that there is nothing further for the courts to do. "All the process that is due," according to federal lawyers, is a right to appear before a panel set up entirely within the military, run by officers, under rules that allow the detainee no lawyer and no assurance of access to all the facts about their capture and detention.
Those "combatant status review tribunals," now in progress at Guantanamo, fully satisfy the Supreme Court's mandate in June to have a "neutral decision-maker" review the combatant designation," according to the Justice Department. It is of no moment, apparently, that those tribunals, with but a mere handful of exceptions, have simply reaffirmed the validity of combatant status.
Those arguments, made in a lengthy brief in Washington, D.C., in 13 separate cases involving more than 60 detainees, provoked a predictable response from the detainees' lawyers. The motion to dismiss, they said, "is simply outrageous. … It simply rehashes the same arguments that were made before, and rejected by, the Supreme Court."
In the coming weeks, two U.S. District judges are expected to rule on the dismissal request. Those judges held hearings early in December, at one of which the government made even more astonishing claims of presidential power to detain individuals—including a suggestion that enemy combatant status could be given to "a little old lady in Switzerland" who wrote checks to a group she thought provided charity to Afghanistan orphans but that actually operated as an al-Qaida support group.
The Justice Department has mounted the same open-ended arguments to try to protect another of the Bush administration's creations to deal with those captured in the war on terrorism: the "military commissions" that have been set up to hold trials of foreign nationals on charges of war crimes—charges so far leveled at only a handful of the hundreds of Guantanamo detainees.
Those commissions, entirely separate from the combatant-status review panels, have been in legal disarray since they opened this fall, and Pentagon officials are said to be trying to fashion ways to make them functional. But they have been stopped by a ruling in November by another federal judge in Washington, James Robertson, who has temporarily barred the commission trial of a Yemeni captive, Salim Ahmed Hamdan.
The Justice Department is taking that case to higher courts and is renewing there its old claim, described by Judge Robertson as an assertion of the president's "untrammeled power to establish military tribunals." None of the Supreme Court rulings upon which the government had relied for that claim, the judge said, has upheld it. Robertson indicated that the government had offered him only selective quotations from Supreme Court precedents to bolster the argument.
"If the president does have inherent power in this area," the judge wrote, "it is quite limited. Congress has the power to amend those limits and could do so tomorrow." But it has not done so yet.
Someone should tell the Justice Department.