Hamdi v. Rumsfeld

The Fifth Amendment states: “Nor shall any person .... be deprived of life, liberty, or property without due process of law.”

No one disputes that Yaser Hamdi, an American citizen, has been deprived of liberty. Since his capture in Afghanistan more than two years ago, he has been held in a series of prisons and military brigs: in Afghanistan, in Guantanamo, in Virginia, and now in South Carolina. For almost all of that time he has not been allowed to speak with a lawyer or communicate with his family. Given the clear text of the Fifth Amendment, this case turns on the question of what “due process of law” means in Hamdi’s situation.

So what is Hamdi’s situation, and what makes him different from you or me? Writing for a plurality of the Court (Justices Rehnquist, Kennedy, and Breyer in addition to herself), Justice O’Connor summarizes in the Court’s 100-page decision:

Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. ... The Government contends that Hamdi is an "enemy combatant," and that this status justifies holding him in the United States indefinitely--without formal charges or proceedings--unless and until it makes the determination that access to counsel or further process is warranted.

Hamdi’s father filed a habeas corpus petition on his son’s behalf. None of the technical problems affecting Jose Padilla’s petition apply here: The petition was filed in Virginia at a time when his son was held there, his father is a proper next friend, etc.

Although his habeas petition provides no details with regard to the factual circumstances surrounding his son's capture and detention, Hamdi's father has asserted in documents found elsewhere in the record that his son went to Afghanistan to do "relief work," and that he had been in that country less than two months before September 11, 2001, and could not have received military training. ... The 20-year-old was traveling on his own for the first time, his father says, and "[b]ecause of his lack of experience, he was trapped in Afghanistan once that military campaign began."

The father claims, in other words, that his son was in the wrong place at the wrong time, and that as a result of this bad luck and his “lack of experience” he may spend the rest of his young life incommunicado in a military brig. If this is true, Hamdi’s father is living the nightmare of any parent whose child travels to a dangerous place.

In response to this petition, the government gave the Court a memo written by Michael Mobbs, a Special Advisor to the Under Secretary of Defense for Policy. (Mobbs provided a similar memo to the court considering Jose Padilla.) O’Connor describes this memo (the “Mobbs declaration”) as “the sole evidentiary support that the Government has provided to the courts for Hamdi’s detention.”

The declaration states that Hamdi "traveled to Afghanistan" in July or August 2001, and that he thereafter "affiliated with a Taliban military unit and received weapons training." It asserts that Hamdi "remained with his Taliban unit following the attacks of September 11" and that, during the time when Northern Alliance forces were "engaged in battle with the Taliban," "Hamdi's Taliban unit surrendered" to those forces, after which he "surrender[ed] his Kalishnikov assault rifle" to them. The Mobbs Declaration also states that, because al Qaeda and the Taliban "were and are hostile forces engaged in armed conflict with the armed forces of the United States," "individuals associated with" those groups "were and continue to be enemy combatants." Mobbs states that Hamdi was labeled an enemy combatant "[b]ased upon his interviews and in light of his association with the Taliban." According to the declaration, a series of "U. S. military screening team[s]" determined that Hamdi met "the criteria for enemy combatants," and "a subsequent interview of Hamdi has confirmed that he surrendered and gave his firearm to Northern Alliance forces, which supports his classification as an enemy combatant."

In other words, the Pentagon justified holding an American citizen incommunicado by having a bureaucrat write a memo saying: Don’t worry. We looked into it. He’s an enemy. One detail is worth noting: Hamdi was captured by Afghans, not Americans; the story of his battlefield capture must either come from them or from Hamdi’s interrogation. Another detail (mentioned elsewhere in O’Connor’s summary) might raise questions about the thoroughness and efficiency of the Pentagon’s investigation: Hamdi arrived at Guantanamo in January, but no one noticed his American citizenship until April. I would love to know whether or not Hamdi was jumping up and down yelling “I’m an American citizen” for three months before he could get anyone’s attention.

The District Court was not impressed by the Mobbs memo, calling it “little more than the government’s say-so.” This started a tug-of-war between the Court and the Pentagon, each of which is duty-bound to defend a different interest. The Court is obligated to defend the rights of American citizens, and the Pentagon is obligated to defend the country against its enemies. The subtext of the Pentagon’s position is: Hey, we’re trying to fight a war here. Get off our case. The District Court asked for more information. The Pentagon protested to the Appeals Court, which told the District Court to back down. Eventually the whole tangled ball of string wound up in the lap of the Supreme Court.

The Supreme Court, however, is not trying to decide the merits of Hamdi’s case at this time. All they are trying to do is give instructions to the lower courts about two fundamental questions:

(1) Does the President have the power to detain American citizens as enemy combatants without charging them with a crime?

(2) Assuming the President has such power, what kind of hearing is a citizen entitled to if he wants to deny that he is an enemy combatant?

The Court split all over the map. Of the nine justices, only Justice Thomas sides with the government down the line: the President has the power to detain enemy combatants and the courts have no power to interfere. Four justices unite behind O’Connor’s opinion that the President has the power to detain enemy combatants, but that the courts can interfere so far as to determine whether or not the process established by the President (including the possibility of military tribunals) is fair. O’Connor makes it clear that the assurances provided by the government to date are inadequate. Justice Souter, writing for himself and Justice Ginsberg, holds that the President does not have the power to detain American citizens indefinitely without charges, whether they are enemy combatants or not. Under this view, Hamdi should be released without a hearing, unless the government wants to charge him with a crime. But given that they don’t have the votes to have Hamdi released, Souter and Ginsberg concur with the process recommendations given by O’Connor. Justice Scalia, writing for himself and Justice Stevens (when was the last time those two teamed up?), take the most extreme civil liberties position: The correct process for the government to use against Hamdi is to charge him with treason. If that isn’t practical, Congress has the power to suspend the right of habeas corpus, which it hasn’t done. Otherwise, Hamdi should go free. All other processes for dealing with Hamdi, including the possibilities postulated by O’Connor, are unconstitutional.

Personally, I find myself siding with Justice Scalia, which is a new experience for me. Now let’s look at the arguments in more detail.

The Power to Detain Enemy Combatants

Article II of the Constitution names the President as Commander in Chief of the armed forces. Article I gives Congress the power to raise armies and declare war. Article III, which establishes the Supreme Court, says nothing about war. As a result, the Court has always deferred to the other branches in issues related to war. (This is why people who disagree with a war do not get anywhere by filing lawsuits; very exceptional circumstances would have to apply for the Court to start trying to make war decisions. At most, the Court might adjudicate a conflict between Congress and the President.)

The power of the President is particularly strong when his actions have been authorized by Congress, because then he acts with the power of two branches of government rather than one. Conversely, the President is at his weakest when he acts in opposition to Congress. Subsequent to 9/11, Congress passed that Authorization for the Use of Military Force (AUMF). It is brief and to the point:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Other than a little boilerplate, that’s the whole resolution. However, Congress also has repealed the McCarthy-era Emergency Detention Act of 1950 by passing the Non-Detention Act of 1971. It states:

No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

So the President can claim his power to detain enemy combatants from his constitutional role as Commander in Chief. Or he can claim to be authorized by Congress via the AUMF. Conversely, Hamdi can claim his imprisonment violates Congress’ Non-Detention Act.

The Bush administration argued in court that his constitutional power is enough: the Commander in Chief can detain enemies captured on the battlefield until the war is over. Both the O’Connor and Thomas opinions (together representing five justices, a majority) refuse to rule one way or the other on that point, because they say it isn’t necessary: the AUMF authorizes the President, and that’s enough. Additionally, the AUMF constitutes an act of Congress, and so satisfies the conditions of the Non-Detention Act. As Thomas writes:

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision. ... [A]lthough it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, ... we lack the information and expertise to question whether Hamdi is actually an enemy combatant.

Notice the choice of words: It isn’t just that the Court lacks the information and expertise to decide whether Hamdi is an enemy; it can’t even question the President’s claim.

O’Connor’s opinion supports the President’s power, but relies less on the Constitution and more on the AUMF. Consequently, her conclusions are far less sweeping. To apply her argument directly to Jose Padilla, for example, the government would have to show that his arrest in O’Hare Airport was “incident to war”:

There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for [the September 11] attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

Justice Souter’s opinion says, in essence: Not so fast. His analysis is a fascinating discussion of the potential abuses of executive power, and (I believe) dead-on, so I’ll reproduce it at some length.

The Government has failed to demonstrate that the [AUMF] authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released.

Souter believes that the AUMF is insufficient to set aside the Non-Detention Act, because it does not specificly authorize detentions. Part of the boilerplate of the AUMF is:

Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

There’s no comparable clause setting aside the Non-Detention Act, and the word “detention” doesn’t appear in the AUMF. Is the AUMF an adequate “act of Congress” for the Non-Detention Act?

the answer has to be no. For a number of reasons, the prohibition within [the Non-Detention Act] has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.

To justify this interpretation, Souter considers the history of the Non-Detention Act.

The provision superseded a cold-war statute, the Emergency Detention Act of 1950, which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States (1944).

He goes on to describe how the Japanese internment came about.

Although an Act of Congress ratified and confirmed an Executive order authorizing the military to exclude individuals from defined areas and to accommodate those it might remove, the statute said nothing whatever about the detention of those who might be removed ... When, therefore, Congress repealed the 1950 Act and adopted [the Non-Detention Act] for the purpose of avoiding another Korematsu, it intended to preclude reliance on vague congressional authority (for example, providing "accommodations" for those subject to removal) as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be "pursuant to an Act of Congress," then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.

He believes that Congress had no reason to anticipate that the AUMF would have consequences for American citizens.

there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit.

Finally, Souter discusses a counterargument that appears in O’Connor’s opinion.

Because the [AUMF] authorizes the use of military force in acts of war by the United States, the argument goes, it is reasonably clear that the military and its Commander in Chief are authorized to deal with enemy belligerents according to the treaties and customs known collectively as the laws of war. ... Thus, the Government here repeatedly argues that Hamdi's detention amounts to nothing more than customary detention of a captive taken on the field of battle: if the usages of war are fairly authorized by the [AUMF], Hamdi's detention is authorized for purposes of [the Non-Detention Act].

This argument, Souter believes, is fatally undercut by the nonstandard treatment that has been accorded to those captured in Afghanistan.

By holding him incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status.

He quotes from the Geneva Conventions and U. S. military regulations that seem to require a different procedure for dealing with those captured on the battlefield.

Whether, or to what degree, the Government is in fact violating the Geneva Convention and is thus acting outside the customary usages of war are not matters I can resolve at this point. What I can say, though, is that the Government has not made out its claim that in detaining Hamdi in the manner described, it is acting in accord with the laws of war authorized to be applied against citizens by the [AUMF]. I conclude accordingly that the Government has failed to support the position that the [AUMF] authorizes the described detention of Hamdi for purposes of [the Non-Detention Act].

Souter sums up with a more general cautionary note:

The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. ... Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.

Justice Scalia goes even farther than Souter.

Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.

To do anything else, he claims, makes a mockery of the Suspension Clause of the Constitution.

If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.

Scalia’s opinion is fun to read just as a history lesson. He goes deep into the common-law origins of habeas corpus, quoting extensively from Blackstone’s 1765 classic A Commentary on the Laws of England, from the Habeas Corpus Act of 1679, and even from England’s Statue of Treasons from 1350. The entire tone of his discussion indicts the view that the War on Terror requires fundamentally new legal principles. He concludes with a characteristically strong statement:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis--that, at the extremes of military exigency, inter arma silent leges. [Latin for: “In war the laws are silent.”] Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

In conclusion to this section, I point out that Scalia’s and Souter’s opinions together represent four justices: a minority. (Notice that this is not quite the Court’s usual conservative/liberal 5-4 split. The conservative majority of Bush v. Gore has traded Scalia for Breyer.) If the next president could add just one civil libertarian to the Court, we could be rid of this “enemy combatant” nonsense.

What is Due Process?

President Bush says that Hamdi is an enemy combatant. Hamdi has not been allowed to speak for himself, but his father says that Hamdi isn’t an enemy combatant. Who should sort this out and how should they do it in order to insure that Hamdi has not been deprived of liberty without due process of law?

Only Justice Thomas believes that Hamdi has already received all the process he is due. Four justices – Scalia, Stevens, Souter, and Ginsberg – believe that Hamdi should either be charged with a crime or released. The remaining four justices – O’Connor, Breyer, Rehnquist, and Kennedy – think due process has not been served yet, but could be satisfied without the protections of a full criminal trial. Officially, this is a 6-3 decision because Souter and Ginsberg endorsed O’Connor’s ideas about process after realizing they could do no better for Hamdi. (Souter’s opinion is technically a concurrance, even though it closely resembles Scalia’s dissent.) But you could just as truthfully describe it as an 8-1 rejection of the Bush administration’s treatment of Hamdi, or a 5-4 endorsement of Bush’s power to detain American citizens.

The Thomas position on the right and the Souter/Scalia position on the left are both easy to understand: Thomas would let Hamdi rot until the President sees fit to release him, while Souter/Scalia would either charge him or let him go. O’Connor’s opinion – which becomes the judgment of the Court with Souter’s concurrance – is more complex.

We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

Notice she does not say “before a judge,” or “before a jury of his peers.” She observes that the statutes defining habeas corpus do not define a specific process, but only demand that the petitioner have an opportunity to deny the facts alleged by the government and put forward other relevant facts.

Aside from unspecified "screening" processes and military interrogations in which the Government suggests Hamdi could have contested his classification, Hamdi has received no process. An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. ... Plainly, the "process" Hamdi has received is not that to which he is entitled under the Due Process Clause.

The government’s position is that, because the judiciary has no constitutional role in war, the courts should accept the facts as determined by the executive branch. O’Connor summarizes:

Under the Government's most extreme rendition of this argument, "[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict" ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential "some evidence" standard. ... Under this review, a court would assume the accuracy of the Government's articulated basis for Hamdi's detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one.

... The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be "meaningful judicial review."

O’Connor finds that the government’s interest in fighting a war without judicial hindrance, and the interest of a hypothetically innocent individual in regaining his liberty are both legitimate, and that a “due process” has to balance these interests.

[W]e believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, the risk of erroneous deprivation of a detainee's liberty interest is unacceptably high under the Government's proposed rule, while some of the additional or substitute procedural safeguards suggested by the District Court are unwarranted in light of their limited probable value and the burdens they may impose on the military in such cases.

We therefore hold 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. ... These essential constitutional promises may not be eroded.

At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. ...

We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one.

O’Connor rejects the government’s claim that the judiciary should stay out of military affairs, saying, “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.”

There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.

What is the Court’s Proper Role?

Reading O’Connor, I realized for the first time that English needs a feminine equivalent of the word patronizing. O’Connor is being superior in a characteristically feminine way: Mom is going to balance everybody’s interests and make everybody happy. She expresses, for example, her appreciation of the efforts of both the District Court and the Appeals Court that reversed its decisions, as if each of them were good kids who had done their best. Everybody – the government, Hamdi, the courts – deserves a pat on the head.

Justice Scalia, being superior in a characteristically masculine way, finds O’Connor’s invention of process outrageous.

As usual, the major effect of [such] constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality [i.e., O’Connor] then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. It "weigh[s] the private interest ... against the Government's asserted interest," and--just as though writing a new Constitution--comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a "neutral" military officer rather than judge and jury. ...

It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition [for release] should be granted

He then provides his own image for O’Connor’s approach, though I think he gets the gender wrong.

There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed procedures--an approach that reflects what might be called a Mr. Fix-it mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches' actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.

I believe that last sentence gives us more insight into Justice Scalia’s mind than we (or at least I) have ever had before: If we keep cleaning up after Congress and the President, we’ll ratify their laziness and lack of political courage.

What Happens to Hamdi Now?

For the time being, he stays locked up, and his case goes back to the District Court to be heard on its merits. Hamdi has won some major concessions: He gets to talk to a lawyer by right, and not just through the benevolence of the Pentagon. The District Court now has a clear mission to design a process which gives him a fair opportunity to contest the government’s claims. Even if the District Court decides that Hamdi is indeed an enemy combatant, the O’Connor opinion does not imply that the government can do whatever they want with him.

Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized [by the AUMF]. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.

This sounds a lot like prisoner-of-war status, which the government so far has refused to give Hamdi. O’Connor approvingly quotes a decision of the Nuremberg Military Tribunal that captivity in war is “neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war.” There is an implied link between the watered-down judicial process she allows and the non-punitive nature of the result. If Hamdi is to be subject to perpetual interrogation, humiliation, or even torture, “that understanding may unravel.”

But the government does not walk away from this decision empty-handed. The Court endorsed the President’s right to detain citizens as enemy combatants, subject to certain safeguards and the authorization of Congress, and it reaffirmed that the executive has a legitimate war-fighting interest that the judiciary should not undermine.

Doug Muder

4 July 2004

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