The Supreme Court Confronts the 9/11 World

Three cases challenge the balance between Liberty and Security

In a fascist country, the leader decides which individuals are enemies of the state, and deals with them as he sees fit. Since 9/11, President Bush has claimed similar powers, but has used them sparingly. Two American citizens, Yaser Hamdi and Jose Padilla, have been declared “enemy combatants” and held incommunicado for more than two years without any criminal charges filed against them. And more than six hundred non-Americans captured during the Afghan War have been held in military detention at the naval base in Guantanamo Bay. The administration has resisted any effort to define their legal status; they are neither criminals nor prisoners of war, and they have not received a hearing in either military or civilian court. It has been unclear what rights they have, or how they would protest an abuse of those rights.

So far, the administration has avoided blatant abuses of these powers. President Bush has not, for example, declared John Kerry (or any other critic or political opponent) to be an enemy of the United States. But under the legal theories put forward by his subordinates, it is unclear what – other than his good nature – would prevent him from doing so.

In the Massachusetts Declaration of Rights, John Adams envisioned “a government of laws, and not of men.” Because our founders distrusted executive power, they set up a system of checks and balances rather than relying on the good character of the President. So it was inevitable that cases testing President Bush’s powers would eventually arrive on the doorstep of the Supreme Court. The first three such cases arrived this spring, and the Court announced all three decisions simultaneously on Monday, June 28.

Habeas Corpus

All three cases involve the same legal concept: habeas corpus, a Latin phrase that means “You have the body.” Among the general public, habeas corpus is not as well appreciated as freedom of speech or freedom of the press. But it should be, because it is the basis of all our other rights. Think of it as the drive shaft of freedom: You may not see it working, but without it the wheels don’t turn.

In simple terms, habeas corpus means that if the government imprisons you, you can demand an explanation in front of a neutral judge. Your other rights mostly just limit the explanations the judge can accept. (For example, your freedom of religion means that the government can’t get away with telling the judge it imprisoned you because you’re a Muslim.) But without habeas corpus, the government doesn’t have to explain anything; you sit in jail and no one considers whether or not your rights are being violated. Prisoners in the Soviet gulags didn’t lack constitutional rights – the Soviet constitution guaranteed them all kinds of rights. What they lacked was an effective habeas corpus process. They could not call their government to account in front of an impartial judge, so none of their other rights mattered.

The concept of habeas corpus is older than the United States. It comes out of English common law, and was well established in the colonies prior to the Revolution. Your other rights weren’t written down until the Constitution was amended to contain the Bill of Rights. But already in Article I of the original Constitution you can find what is called the Suspension Clause: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Suspending habeas corpus is the constitutional equivalent of a panic button. Congress hasn’t done it since the Civil War, and no Congressman even proposed doing it in response to 9/11.

The powers claimed by the Bush adminstration naturally raise habeas corpus issues: If the President decides to lock you up, who can call him to account for that decision? When called to account, if he responds by saying that you are an enemy of the United States, is that good enough? And if it isn’t, who can set you free?

The Cases

The three cases decided June 28 cover a wide spectrum of situations.

(You may be wondering why the detainee’s name comes first in the Rasul and Hamdi cases and second in the Padilla case. The first name is always the party who brings the case to the court. At the Supreme Court level, the person bringing the case is almost always the one who lost in an appellate court one step below the Supreme Court. Padilla won his ruling in an appeals court, while Rasul and Hamdi lost theirs.)

By ruling on these three cases at the same time, the Court had an opportunity to sort out what factors really matter in habeas corpus cases: your citizenship, where you were arrested, where you are being held, or who is holding you. In each case, the Bush administration claimed to be acting under the President’s constitutional power as Commander in Chief in time of war, and that these actions were consequently beyond the power of the courts. The courts should either not review these cases at all, the administration argued, or review only their procedural aspects without challenging the government’s findings of fact. Going in, the administration’s case seem to be strongest in Rasul (where non-Americans captured on a foreign battlefield were being held outside the United States) and weakest in Padilla (where an American citizen was both arrested and held on American soil).

The Results

In Rasul v. Bush, the Court decided that the two Australians and 12 Kuwaitis have the right to have their habeas corpus petitions heard by a federal court. It did not say what process the lower courts should use to decide these cases. This was a 5-4 decision that mostly concerned technical issues of jurisdiction.

In Hamdi v. Rumsfeld, the Court ruled 5-4 that President Bush has the authority to detain American citizens without charges, but sided 6-3 with Hamdi that the citizen must have some opportunity to argue the facts of the case before a “neutral decisionmaker.” According to the Court, that decisionmaker could be an officer in a military tribunal, if he were sufficiently independent and the rules of the tribunal gave the citizen sufficient opportunity to contest the government’s case. Or the hearing could be in a federal court. Details are left to the District Court to sort out. Only Justice Thomas believed that the process so far has been adequate, so the administration’s position was rejected 8-1.

In Rumsfeld v. Padilla, Padilla’s habeas corpus petition was thrown out, 5-4, for the technical reason that it was filed in the wrong district (Southern New York) and named the wrong person as the jailer. Like Rasul, this was an argument about jurisdiction. The minority held that the case was too important to sidetrack on technical grounds and tried to find ways around the technical problems, but the majority wasn’t buying it. Padilla’s lawyer will undoubtedly file a new petition in the South Carolina district.

The following links lead to more detailed summaries of the arguments and issues in each case: Rasul v. Bush, Rumsfeld v. Padilla, Hamdi v. Rumsfeld.


All in all, this is a mixed result. I would have preferred a ringing endorsement of the right to trial by jury, at least for American citizens. When the Padilla case is heard on its merits we may get such an endorsement, but we do not have one yet.

On the other hand, the Court also refused to allow the Bush administration to have the unchecked power it claimed, and by a wide margin. Only Justice Thomas seemed not to realize that Bush has opened the door to fascism. The other justices each appeared to realize that we are at a tipping point: if the Bush administration’s claims were ratified by the Court, the opportunity to block future seizures of power might vanish. As Justice Stevens wrote in his dissent in Padilla: “At stake in this case is nothing less than the essence of a free society.”

Justice Thomas’ opinions are truly worrisome, however. If they were established as precedents, I don’t think the Court would have a leg to stand on if Bush (or some future president) did start imprisoning his political rivals as enemies of the United States. If the Commander in Chief has absolute power over the battlefield, and if the battlefield of the War on Terror is potentially anywhere – with the president empowered to determine which places are and are not part of that battlefield – then the president can establish dictatorship whenever it suits his convenience. Even those who believe President Bush is worthy of such trust can surely remember some president who was not. Is our political process so reliable that we can trust every future president to wield unchecked power responsibly?

On the positive side, Justice Scalia’s opinion in Hamdi was (to me, at least) a very pleasant surprise. I read these cases with one question uppermost in my mind: How many votes away from fascism are we? I worried that it might be as few as two, and that President Bush might have the opportunity to add those two votes to the Court in his second term. But in Hamdi, Scalia and (to a lesser extent) Rehnquist showed that they will not easily acquiese. President Bush would have to add four pro-fascist justices in order to prevail in the Court, and that seems quite unlikely. American freedom, at this moment, is a little bit more secure than it was a week ago.

In the waning days of the Roman Republic, Pompey the Great said, “Stop quoting laws to us, we carry swords.” With luck and determination, we may be quoting laws to our presidents for many years to come.

Doug Muder

4 July 2004

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