Taking it to the trenches.

Taking it to the trenches.

Taking it to the trenches.

Military analysis.
June 29 2004 4:35 PM

Taking It to the Trenches

What the Supreme Court's terrorism decisions will mean for the war effort.

Illustration by Robert Neubecker

Lawyers and scholars will likely wrangle for some time over the implications of Monday's Supreme Court decisions in Hamdi v. Rumsfeld, Rasul v. Bush, and Padilla v. Rumsfeld. The three terrorism cases decided this week have profound implications for America's separation of constitutional powers, balance between liberty and security, and commitment to the rule of law.

But for the U.S. military and intelligence personnel now fighting the war on terrorism, these decisions also have important and more immediate repercussions. The court's omissions are almost as vital as what it did. The decisions did not substantially impinge on the president's actual powers to wage war or on the military's right to take prisoners during war. But the court did speak to the kinds of procedures necessary to lawfully hold combatants. By levying procedural due-process requirements on the government in Hamdi, the court likely created new requirements for soldiers in the field when they detain prisoners. It also may have fundamentally changed the way our nation gathers intelligence in the war on terrorism. And by opening the federal courts to the Guantanamo detainees, the high court may have altered the nature of U.S. detention operations—and created a new means of resistance for detainees in U.S. captivity.

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The Constitution divides war powers between the executive and legislative branches—Congress has the power to declare war, raise armies, regulate the military, and levy taxes to pay for these purposes; the president serves as "Commander in Chief of the Army and Navy of the United States." For most of the nation's history, courts have been reluctant to step in between those bodies on questions of national security. Only in rare circumstances has the Supreme Court overruled an act of the president in wartime—such as President Truman's unconstitutional steel-mill seizures during the Korean War—in cases where the president has acted against the law or without congressional authorization. The war powers rest with the two "political branches" because they're elected and theoretically accountable to the people. A recent example of this doctrine in action is the 1st Circuit Court of Appeals' decision to not enjoin President Bush from invading Iraq in March 2003.

The president's power to wage war was not itself at issue in any of this week's Supreme Court decisions. But the power to detain prisoners is a subset of those powers—and ultimately of the larger power to kill in wartime—so it was something the court could have touched upon if it chose to. In its Hamdi decision (the most important of the three), the Supreme Court all but affirmed the use of force by the president since Sept. 11, saying that Congress' resolution from Sept. 18, 2001, provided both the explicit power to wage war and the "explicit congressional authorization for the detention of individuals in the narrow category we describe." At the end of the day, the White House emerged with its broad war powers intact, including the power to take prisoners on the battlefield, so long as it acts with the authorization of Congress.

Within that broad scope of war power, however, the court did carve out a few important exceptions that will impact the way America fights terrorism. The most significant of these comes from the case of Yaser Hamdi, a young U.S. citizen captured on the Afghanistan battlefield in late 2001. The court held 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," importing a body of law known as "procedural due process" to settle cases where a U.S. citizen charges he's wrongfully detained as an enemy combatant. The court declined to concretely define this process but said it might look something like the Army's procedures to sort combatants on the battlefield pursuant to Article 5 of the 3rd Geneva Conventions governing prisoners of war. In other words, the government must offer more due process than what Hamdi has received so far, but substantially less than he would get as a criminal defendant in a civilian court.

One operational implication from this ruling is that soldiers in the field will need to become substantially more diligent about their actions at the "point of capture" than they have been. When military personnel capture someone now, they are supposed to fill out a short form with tiny boxes for "date and time of capture" and "description of weapons, special equipment, documents." Additionally, prisoners are generally interrogated when captured, in the hopes that they will provide valuable battlefield intelligence. It's not clear whether these measures will create enough of an evidentiary record to satisfy the kind of process envisioned by Justice Sandra Day O'Connor in the Hamdi decision. If they don't, the military will need to develop some new mechanism for gathering evidence, such as the creation of special Judge Advocate General teams whose sole job is to interview soldiers after they capture detainees, in order to create an evidentiary record for future detention hearings.

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Justice O'Connor's opinion in Hamdi also may have imposed a substantial limit on the reasons a detainee can be held, in addition to the requirements for due process. The Bush administration vociferously argued that it needed the power to detain combatants to gather intelligence about future terrorist operations—indeed, that detainee interrogations were one of its best tools in this shadowy war on terrorism. The court tackled that argument obliquely: "The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again," O'Connor wrote, adding later that "Hamdi contends that the [Congressional authorization of force] does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." The operational implication from this language isn't altogether clear, because the court didn't specify just how much detention it would allow for the purpose of interrogation. One indicator of how the court might see this issue comes from Justice Anthony Kennedy's concurrence in Rasul, where he wrote that "as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker." Still, it's not clear whether the courts will find that all protections afforded in Hamdi will automatically be offered to the Guantanamo detainees.

This point matters a great deal because the Bush administration has used the interrogation rationale to justify a litany of other measures, including the denial of access to counsel. In a declaration filed early in the Hamdi case, Navy Cmdr. Donald Woolfolk made the following assertion regarding lawyers and their effect on the intelligence process:

[T]he need to maintain the tightly controlled environment, which has been established to create dependency and trust by the detainee with his interrogator, is of paramount importance. Disruption of the interrogation environment, such as through access to a detainee by counsel, undermines this interrogation dynamic. … Most importantly, the disruption occasioned by the insertion of outside counsel will sever the intelligence gathering value of this detainee.

The court's Hamdi decision implies that it will not accept this rationale as a reason for indefinite detention. It stands to reason that the court will also not accept the interrogation justification as a reason for denial of the 6th Amendment right to counsel for any U.S. citizen held as a combatant. If the Pentagon's predictions are true, this will substantially impede efforts to gather intelligence from detainees captured in the war on terrorism. Interrogation operations form the cornerstone of the U.S. "human intelligence" collection strategy because it's so hard to penetrate terrorist cells in order to gather actionable human intelligence the cloak-and-dagger way. If the Pentagon is right, this may cause substantial and irreparable harm to the war effort. But similar arguments have been made before, most notably by police agencies before and after the Supreme Court's decision in Miranda v. Arizona. The sky did not fall after the court required police agencies to warn suspects of their rights; indeed, many police today see the Miranda warning as a procedural formality that barely affects interrogation in practice.

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The Rasul decision will impact the war on terrorism insofar as it grants detainees the right of access to U.S. courts to challenge their detention. The court did not define the exact parameters of this right, so it's impossible to tell how much of an effect it will have. But if the Guantanamo detainees receive the full right to petition for a writ of habeas corpus in federal court, and that right includes access to counsel to assist with the filing of the petition, then the court may have unwittingly opened a new front in the war on terrorism. First, this will affect interrogations, as discussed above—detainees who talk to their lawyers will be less likely to spill their guts during interrogations. Second, detainees may come see filing a habeas petition as part of their duty to resist American captivity, just as U.S. soldiers are duty-bound to resist their captors under the Code of Conduct "by all means available." In a worst-case scenario, every single Guantanamo detainee will now seek the writ of habeas corpus, along with every detainee now held by the United States in Iraq or Afghanistan. Whether this happens or not depends on the way lower courts construe the fractured opinion in Rasul, specifically the way it distinguishes past precedent that barred "enemy aliens" from U.S. courts.

Most significant, the Rasul decision pushed the Pentagon to announce today that it was moving forward with its plans for military tribunals. The language in Justice Kennedy's concurrence—"Indefinite detention without trial or other proceeding presents altogether different considerations. … It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus"—clearly encouraged this decision. Faced with the choice between arguing against habeas corpus petitions in federal district court and prosecuting detainees in a highly deferential military setting, the Pentagon took the most obvious choice.

Over time, these operational implications may change, particularly as the Pentagon changes its policies in response to these decisions. But in the long run, the symbolic effect of these terrorism opinions may be what's most important. On Monday, the Supreme Court drew a line in the sand demarcating the outer boundaries of executive power, in what is perhaps the most quintessential of all executive powers—the power to defend the nation. Where the constitutional imperative to provide for the common defense clashes with the individual rights and liberties of persons, the court decided that it alone shall have the final say as to how far the president may go. In doing so, the court reaffirmed America's commitment to the rule of law at a critical time in our nation's history.

The images of shackled prisoners at Guantanamo Bay and naked prisoners at Abu Ghraib have not helped America win many friends in the world, nor have the memoranda from Bush administration lawyers arguing that such tactics are justifiable means to a worthy end. But in limiting the president's power to detain combatants, the Supreme Court may have taken the most significant step yet toward rehabilitating the commitment of the United States to the rule of law.