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Judge Not

Congress must act on detainees.

On December 18, two federal appeals courts rejected the Bush administration's claim that the president has the unilateral authority to identify citizens or aliens as enemy combatants and to detain them indefinitely, at home and abroad. The rulings were a clear sign that President Bush's sweeping claims that he can do whatever he likes in the war on terrorism without review by the courts or Congress are provoking a judicial backlash. Unfortunately, both of the appellate decisions went too far in insisting that courts have the competence to second-guess what have traditionally been considered executive decisions about the nature and scope of the war on terrorism. Instead of inciting further judicial overreactions with unnecessarily broad claims about his authority to act alone, Bush should follow the example of his wartime predecessors and seek the support of Congress instead.

In the more adventurous of the two decisions, Gherebi v. Bush, the U.S. Court of Appeals for the Ninth Circuit held that the enemy aliens being held in Guantanamo Bay can challenge the constitutionality of their detentions by filing habeas corpus petitions in federal courts. The Supreme Court held in 1950 that German enemy aliens tried for espionage by a U.S. military commission in China and imprisoned in Germany had no right to challenge the legality of their detention, because they were held outside "any territory over which the United States is sovereign." The same logic arguably applies at the Guantanamo Bay Naval Base, which the United States leases from Cuba. But the federal appeals court in California held that, since the lease is perpetual unless both parties agree to break it, the United States had the equivalent of sovereign control over the naval base. (Two other appellate courts had previously reached the opposite conclusion about the status of Guantanamo.) The U.S. Supreme Court will resolve the dispute once and for all this spring, but the Ninth Circuit refused to wait for its decision.

In practice, if the Supreme Court agrees that federal courts have jurisdiction over Guantanamo, the United States could avoid future judicial scrutiny simply by imprisoning all future enemy combatants at the Diego Garcia U.S. Naval Support Facility, located on British territory in the Indian Ocean. This suggests the impracticality of judicial attempts to create broad constitutional rights for enemy aliens based on geographic technicalities. It's certainly troubling that some detainees might fall into a legal black hole, and it's understandable that justices might therefore be tempted to impose some kind of U.S. judicial oversight on Guantanamo. But, for better or for worse, the Supreme Court has long refused to extend the jurisdiction of federal courts over aliens outside the United States, and it would be nave to expect the Court to revisit that decision on a broad scale.

Although the Ninth Circuit tried to second-guess the president's decision about the designation of enemy aliens, they failed to review a question where they arguably have more competence: namely, the constitutionality of the military tribunals by which the United States has promised to try at least some of the Guantanamo prisoners. "The Ninth Circuit got it precisely backward by allowing the enemy aliens to contest whether the president has the authority in times of crisis to detain them but not allowing them to contest the trials that they may face," says Neal Katyal of Georgetown University Law Center. "The more principled ruling would have said, the president has a broad warfighting power, where the courts should defer to his judgment, and a narrower law enforcement power, where courts can review the constitutionality of any legal procedures he creates." Katyal argues that only Congress has the power to authorize military tribunals and that the congressional statutes authorizing such tribunals during World War II aren't broad enough to cover the terrorism charges that the Bush administration seeks to prosecute today. My own view is that Bush should ask Congress to authorize the tribunals, but, if he doesn't, the World War II statutes are arguably broad enough to justify the tribunals today. But it's clear that the ultimate supervision of military tribunals—including provisions governing the appointment of counsel—should ideally come from clear statements by Congress rather than the courts.

THE SECOND APPELLATE decision questioning the Bush administration's assertions of unilateral authority also points to the need for congressional action. In Padilla v. Rumsfeld, the U.S. Court of Appeals for the Second Circuit in New York rejected Bush's claim that he has the power to designate citizens seized in the United States as enemy combatants and to hold them indefinitely without charges. The Court held that the president lacks any inherent authority, as commander-in-chief, to detain American citizens on U.S. soil outside a combat zone. It also held that Congress specifically denied that authority in 1971, when it passed a law declaring that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." (The law was passed to avoid a repetition of the detention of Japanese-Americans during World War II.) In a dissenting opinion, Judge Richard C. Wesley argued that Congress actually did authorize the detention of enemy combatants whom the administration believes are connected to Al Qaeda when it passed a joint resolution after the September 11 attacks, which authorized the president to use "all necessary and appropriate force" against the people he determines planned or aided the September 11 attacks "in order to prevent any future acts of international terrorism."

It's far from clear based on that language whether Congress had in mind the detention of American citizens who are Al Qaeda sympathizers unconnected with the September 11 attacks, and, by construing the language strictly, the majority on the appellate court hoped to give Congress an incentive to make its intentions clear. Nevertheless, in a famous opinion rejecting Harry S Truman's unilateral attempt to seize the steel mills in 1952 in order to avert a strike, Justice Robert Jackson emphasized that, in reviewing broad claims of executive authority in wartime, courts should attempt to ensure a "workable government": If courts insist on interpreting Congress's post-September 11 grants of power to the president too narrowly, his practical ability to respond to serious threats of international terrorism might be hampered.

But, again, instead of second-guessing the source of the president's detention power, the appellate court could have focused on a question more directly in their area of competence: Namely, after the president has designated an enemy combatant, what legal rights should he be entitled to? In a thoughtful opinion at the end of 2002, Judge Michael Mukasey, a district judge in New York, insisted that all citizens whom the president has designated enemy combatants should be entitled to meet with lawyers in order to challenge the factual basis on which they have been detained. By ordering that Jose Padilla be charged or released, the appellate court surrendered their opportunity to review the crucial question of lawyers and procedures for enemy combatants. As Peter Margulies of Roger Williams University argues, courts might instead recognize the president's implied power to detain enemy combatants but insist that it be accompanied by guarantees of counsel, fair procedures, and time limits on their detention. (The Supreme Court will have the opportunity to do just that in the case of Yaser Hamdi, which they agreed to review last week. But, because Hamdi, unlike Padilla, was seized on the battlefield of Afghanistan, he presents a less sympathetic case for civil libertarians.)

Even if the appellate court went too far in insisting that the president can't detain enemy combatants without explicit congressional approval, the judges were certainly correct that the detentions would be politically and constitutionally easier to defend if the president asked Congress to authorize them. Our greatest wartime presidents have recognized that actions taken unilaterally in the middle of a crisis should be approved by Congress after the crisis has receded: For this reason, Abraham Lincoln asked Congress to justify his Civil War suspension of habeas corpus after the fact, and Congress quickly did so. Similarly, Franklin Roosevelt sought congressional authorization for his military tribunals, and Truman reported to Congress when he seized the steel mills.

Following the examples of Lincoln, Roosevelt, and Truman, Bush could ask Congress for a comprehensive bill authorizing and regulating the detention of enemy combatants and the creation of military tribunals. It's obvious that, if Bush doesn't ask, Congress won't act on its own. Indeed, a well-crafted bill to authorize the detention of enemy combatants was introduced a year ago by Representative Adam Schiff, a California Democrat, but has languished with few supporters in either party. Republicans aren't interested in passing even minimal procedural rights for suspected terrorists, and Democrats are more interested in bashing John Ashcroft than in thoughtfully balancing liberty and security.

If, by contrast, Bush were to support Schiff's bill or introduce his own as a sign of respect for Congress's constitutional authority, the bill would probably pass by bipartisan majorities. A comprehensive terrorism bill would give the administration all the authority it seeks in exchange for a measure of congressional oversight that the administration might prefer to avoid but could certainly live with. Such a bill could authorize the president to detain as enemy combatants those citizens and aliens whom he believes are connected to Al Qaeda and pose an imminent risk of terrorist attacks. It could guarantee the combatants access to lawyers and judicial hearings in which they could contest the factual basis for their detentions. And it could require judges to defer to the president's designation as long as there is a reasonable probability that facts exist to justify it. The bill could also authorize a temporary delay in the appointment of lawyers for enemy combatants in cases where the attorney general certifies that the delay is necessary for an ongoing interrogation. Finally, the bill could require the attorney general to justify the continued detention of an enemy combatant every six months—and to periodically report to Congress on the status of that combatant—to ensure that he or she doesn't fall into a legal black hole.

A bill along these lines would do more to protect American citizens from the arbitrary exercise of executive power than any number of judicial decisions trying to flyspeck the source of the president's authority to designate enemy combatants. It would remove any constitutional doubts about the president's authority and show a healthy respect for Congress's prerogatives as a coordinate branch of government.

Why then hasn't Bush introduced such a bill? He believes that a show of humility before Congress would call into question his arrogant argument before the Supreme Court that the president can do whatever he likes without bothering to seek congressional approval. But now that his arrogance has provoked a backlash from judges who are as full of their own power as he is, the president may rediscover the virtues of asking Congress for all the help he can get.