Crisis of confidence.

Crisis of confidence.

Crisis of confidence.

The law, lawyers, and the court.
June 12 2007 6:43 PM

Crisis of Confidence

The latest terror ruling suggests that the courts do pretty well in a crisis.

It's tempting to frame yesterday's 4th Circuit decision in al-Marri v. Wright—the case of the last known enemy combatant detained in the United States—in one of several old and familiar ways. By a 2-1 margin, a panel of the Virginia-based appeals court ruled the president cannot label a resident legal alien an "enemy combatant" and lock him up forever in military custody. Some of today's papers try to frame this as yet another fight between two Clinton-appointed judges and a Bush appointee. Others can and will cast this as a conflict between President Bush's effort to militarize domestic crime-fighting and the judiciary's attempt to micromanage his war. But the al-Marri decision also highlights a more subtle conflict that underlies our debates about how to fight the war on terror: whether to look backward or forward.

Almost from the outset, one of the Bush administration's central complaints about using a traditional legal model to try terrorists was that the process is too backward-looking, reactive, and slow. The government needed more flexibility, we were told, to act pre-emptively. It needed a new anticipatory model that would interrupt future terror plots as opposed to reacting to completed ones. That's why so many of the administration's subsequent legal strategies—from authorizing coercive interrogations to sanctioning indefinite detentions to doing away with warrants—were rooted in the notion that it was more important to deter future attacks than to punish criminals. And it was understood and accepted that punishing criminals would be harder to do someday when courts were confronted with tortured confessions or warrantless searches.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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Now, however, we're looking at the administration's claims from a different vantage point: There have been no significant attacks since 9/11. For almost six years we have lived in the shadow of Bush's defensive crouch, and nothing has happened. Right or wrong in the end, the president's insistence that there is simply no time for sober debate and tedious legal head-scratching become less credible every month that another terrorist attack fails to materialize. And perhaps that is why the passage of all this time hangs so heavily over Judge Diana Gribbon Motz's majority opinion in al-Marri.

Motz opens by invoking "over two centuries of growth and struggle" in America and segues quickly to the defendant who was picked up "more than four years ago." The words indefinite and indefinitely appear over and over in the decision, as do the "four years" he has been held by the military and the "16 months" he spent in isolation in the brig. In Motz's hands, the story becomes one of time dragging on, while government lawyers idly push papers from one jurisdiction to another. And in her telling, time essentially stopped altogether for al-Marri on June 23, 2003, when President Bush scrawled his name on an order determining that the defendant was an "enemy combatant." From that moment on, the government's position has not changed. For four years, the president's been coiled up and ready to fight the 9/11 attackers.

The most striking note in the 4th Circuit's decision yesterday is not that court's obsession with the past. That has become the president's domain. The court, by contrast, is focused on the future: on creating clean legal lines for the next enemy combatant case. Motz's opinion detangles the constitutional and statutory rights of habeas corpus; it parses the Military Commissions Act in order to separate "properly detained" enemy combatants from improperly detained ones. It struggles with the role of a Combatant Status Review Tribunal—the government panels that determine whether detainees should be held or freed, and what it means for a detainee deemed to be "awaiting" such a review. The majority struggles to understand the legal categories created by the MCA, by prior cases such as Hamdi and Padilla and Hamdan. It strives to grasp the contours of the president's authority under the Authorization of Use of Military Force that Congress passed in 2001, allowing the president to retaliate against the 9/11 attackers.

In short, the court does exactly what courts are charged with doing. It spends dozens of pages trying to define the proper "legal category" into which al-Marri fits, so it can determine not just what to do with al-Marri but what to do with all the al-Marris who may pass through its doors in the future. Judge Motz ends by quoting the president telling us that the War on Terror "will continue long after you and I have turned our duties over to others." She quotes Justice Sandra Day O'Connor writing in Hamdi that "if the practical circumstances of a given conflict are entirely unlike" previous wars we have faced, the very notion of detaining one's enemies for the entire duration of the conflict "may unravel."

One can agree or disagree with the court's conclusions on all of these matters, and no doubt plenty of people will do both. But the court can't be faulted for striving to draw straight lines between the scattered new data points that are Hamdi, Padilla, and the relevant statutory and constitutional provisions. That's what it's supposed to do. The government, on the other hand, is frozen in the aftermath of the 9/11 attacks. Its argument, too, rests on a frozen legal contention—that the president has the sweeping statutory or inherent authority to identify and detain "enemy combatants" indefinitely. As the majority opinion notes, that theory is becoming old, particularly as it still has very little legal or analytical support. The court is almost warning the Bush administration that it's very difficult to move forward in this war when half of the team is still gaping over its shoulder at the pillar of salt.

Is there something magical about having gone five and a half years without another 9/11? The administration has claimed that all the new legal authority it has grabbed in that time has been central to thwarting new attacks. Perhaps. But whether you call it a national epidemic of denial or a healthy outburst of healing, the country is beginning to understand that if we are going to be at war with terror for the rest of our lives, we need to think very carefully about the freedoms we give up. And that in turn means engaging in a future-looking analysis of how and if the laws of war should change to accommodate a new kind of enemy. It means sorting out deliberately whether the last five years of coercive interrogation have yielded any real results and whether past policies of indefinite detention have had any merit. It means getting down to the business of crafting a legal regime based on clean rules, as opposed to blanket assertions of executive authority in a time of crisis.

The 4th Circuit is seeking just such clear rules and definitions and categories in al-Marri, and that is a proper pursuit that is long overdue. The paradox of al-Marri is that it's the leaden, slow, and tortoise-like judiciary that seems to be resisting the inevitable temptation to keep on fighting the last war. This time, oddly enough, it may be the courts that are lighting the way toward contemplating the next one.