Retrospective: The Supreme Court and Terror Suspects (Conservative Scalia, Liberal Scalia)

Vector illustration of a man in jailOf the countless Scalia write-ups this past week, the one from the Washington Post, for me, captures his legacy to a tee. It’s by the politically liberal Tara Kole who clerked for Scalia:

“If there was a true surprise during my year clerking for Scalia, it was how little reference he made to political outcomes. What he cared about was the law, and where the words on the page took him. More than any one opinion, this will be his lasting contribution to legal thought. Whatever our beliefs, he forced lawyers and scholars to engage on his terms — textual analysis and original meaning. He forced us all to acknowledge that words cannot mean anything we want them to mean; that we have to impose a degree of discipline on our thinking. A discipline I value to this day.

“In one case I worked on writing a dissent — the position held by a minority of the court — with which I fundamentally disagreed on a moral level, but found, as I wrote, that I was drawn to Scalia’s reasoning; his emphasis on precedent, strict textual construction and judicial restraint. Scalia’s arguments conveyed a clarity not found in the majority’s opinion, which relied on legal and verbal gymnastics in order to reach the desired outcome.”

Perhaps no set of cases better illustrates the duality of being outside Scalia’s political compass while respecting his judicial reasoning, than the four rulings between 2004-2008 dealing with detained terror suspects. Guantanamo has been a stain on the American image, a black hole where executive powers could do as they wished with impunity. Unfortunately, I don’t like the sometimes shifty (even shitty) reasoning used by our liberal justices in bending over backwards to give presumed enemy combatants access to federal courts. Treating foreign terrorists like American car thieves, and granting them civilian lawyers, classified intelligence, and all the attendant rights of a normal jury trial isn’t the best idea. It’s why executive powers set up alternate military tribunal systems in the first place — and this is what Scalia stressed in his dissents, in addition to precedents of law. Let’s go through the four cases.

Rasul vs. Bush (2004): Conservative Scalia

In the first case, the liberal majority granted foreign detainees unprecedented access to U.S. federal courts. The Bush administration had chosen Guantanamo as a site for terrorism-related prisoners because it assumed it would be considered outside the jurisdiction of the courts. Bush’s lawyers had relied on Johnson v. Eisentrager (1950), for the premise that foreigners captured and kept outside of the country (as for Germans in WWII) did not have access to U.S. courts. Justice Stevens, writing for the majority of six, objected to this precedent on grounds of an obscure ruling in Braden v. 30th Judicial Circuit Court (1973), in which the Supreme Court held:

“The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody. The language requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction.

In other words, territorial jurisdiction is derived from the location of the custodian — those responsible for the indictment — rather than the custody. This decision effectively overturned Ahrens v. Clark (1948), which denied the federal courts jurisdiction to issue a writ of habeas corpus if the person detained is not within the territorial jurisdiction of the court when the petition is filed.

Stevens then attempted to conform his interpretation to the court’s general position on extraterritoriality. He said that Rasul wasn’t extraterritorial: since Guantanamo Bay was a military base under control of the U.S., it was a locus of territory of the U.S. In the opinion of many legalists, that’s a rather shifty and convenient rationale.

Scalia wrote the dissent (followed by Rehnquist and Thomas), arguing that the majority had sprung a trap on the executive branch, subjecting Guantanamo Bay to the oversight of federal courts even though it never before was thought to be within their jurisdiction. In so doing, the Court subjected detention policy and practice — traditionally an executive function during wartime — to a cumbersome and problematic review by the judicial system.

Hamdi v. Rumsfeld (2004): Liberal Scalia

On the same day of the Rasul decision, Scalia went the other direction in favor of due process for detainees. Not only did he oppose executive overreach in Hamdi, he did so in a manner far more liberal than the majority.

The detainee in question was a U.S. citizen. Yaser Hamdi was born in Louisiana and grew up in Saudi Arabia, and captured by Taliban fighters on an Afghan battlefield in 2001. He was detained by the U.S. military as an “enemy combatant” and eventually transferred to Charleston, South Carolina for his detention, where he was held indefinitely. Administrative lawyers urged the Court not to second guess a military judgment to imprison someone as an “enemy combatant”, but the Court would have none of it, and the decision was a landslide 8-1. (Justice Thomas was the lone justice who sided with the executive branch against Hamdi, on grounds of security interest and in defense of the President’s broad war-making powers.)

Justice O’Connor, writing for a majority of six (Rehnquist, Breyer, and Kennedy; also Souter and Ginsburg, though they disputed some minor points) allowed detention of U.S. citizens suspected of terrorism, but only after a fair hearing. She added several conditions to the administration’s ability to detain a U.S. citizen. He/she must be told the factual basis for charge and be allowed to rebut it, though because of the burden of ongoing military conflict on the Executive, normal procedures (placing a burden of proof on the government, ban of hearsay, etc.) need not apply. Justices need not be involved, but the defendant has the right to at least an “impartial decision maker” as well as counsel.

That majority opinion wasn’t liberal enough for Scalia, for whom the detention of U.S. citizens was constitutionally wrong on a basic level. Either Hamdi had to be tried under normal criminal law, or he had to be let go. There could be no middle ground. Stevens (Scalia’s foe in Rasul) joined him in this uncompromising restriction of executive power. According to Scalia, the Court’s only job is to determine whether or not the arrest is constitutional or not, and then order the person’s release or proper arrest — not to invent a new process for detention. Scalia scorned O’Connor’s “Fix-It” strategy (rightly, I think), as it assumes a capricious legislative role. Sketching out minimum requirements, as good-intentioned as O’Connor’s solution is, becomes a potential for tyranny over citizens who pose no such threat. Due process should proceed as it does for any other citizen.

Hamdan v. Rumsfeld (2006): Furious Scalia

Many experts consider this case to be the most significant legal battle in the presidential war on terror. It resulted in a dramatic showdown between the liberal majority and the Bush-Cheney executives, not to mention between that same majority and the outraged conservative dissenters. Scalia was in blistering form, and Clarence Thomas was so incensed that he delivered his own dissent from the bench (something he had not done in over six years).

Salim Ahmed Hamdan was Osama bin Laden’s chauffeur and bodyguard, captured during the invasion of Afghanistan in 2001 and eventually sent to Guantanamo, where he requested a writ of habeas corpus. But in response to Rasul (which as we saw gave the judicial branch jurisdiction in Guantanamo), Congress had passed law in December 2005, called the Detainee Treatment Act, which legally stripped the judicial branch to hear petitions for habeas corpus from any Guantanamo detainee. The Court decided to hear Hamdan’s case anyway, on grounds that the Act had been passed after Hamdan filed his request, and not before. (A slippery move with flimsy justification.)

The actual case of Hamdan focused on the question of (1) whether or not Congress had authorized Bush to create military tribunals (the government claimed that congressional authorization was given in the Authorization for the Use of Military Force (AUMF)) and (2) whether or not Geneva Convention standards were being followed so as to guarantee the defendant certain rights, like attending proceedings and be able to appeal a determination to an independent court (the government claimed that the Geneva Conventions don’t apply to enemy combatants). The decision was 5-3. (Justice Roberts recused himself since he had sat on the lower court which ruled against Hamdan.)

Stevens wrote for the majority:

  • Bush’s plan to prosecute Guantanamo detainees in special tribunals, rather than in regular courts, needed authorization from Congress and had not been independently justified by military necessity. The tribunal plan thus violated the Geneva Conventions and exceeded the president’s constitutional authority. The resolution passed by Congress shortly after 9/11 authorized the use of military force, but did not cover Bush’s blueprint for the tribunals.
  • The military commission system ordered by Bush in November 2001 failed to provide for a “regularly constituted court”, as required by Article 3 of the Geneva Conventions, and in any case, its procedures fell short of those required under the Conventions and the Uniform Code of Military Justice for use by court-martial. Common Article 3 banned cruel treatment and torture of detainees, and concerning tribunals, it prohibited the “passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.
  • The Detainee Treatment Act passed in December 2005, while legally stripping the courts of the right to hear habeas corpus petitions, did not apply to cases like Hamdan’s which were already filed in the courts. The drafting history of the DTA suggests that changes in law cannot be applied retroactively.

Scalia was furious — visibly angry by the trickery used to get around the Detainee Treatment Act, and his voice kept rising as he read his dissent.

  • Draft history does not determine a statute’s meaning; the final result does. Bruner v. The United States (1952) and other cases clearly mandate that a statute which excludes jurisdiction (like the Detainee Treatment Act of 2005) takes immediate effect in all cases, including pending ones, unless it has clear language stating otherwise. The liberal majority had flouted these glaring precedents in order to smuggle in a case they simply wanted to hear to thwart the Bush-Cheney administration.
  • The Court assumes a legislative role by creating a right of habeas corpus for alien enemies who are not within the territorial jurisdiction of the United States. While the Constitution guarantees the right of habeas corpus to U.S. citizens, and also to those detained within the United States, it certainly does not extend it to alien enemies who are detained outside the United States.
  • Bush’s military tribunals were not inadequate (a point expanded on by Justice Thomas, below), and the majority was wrong not to defer to Bush. The president was responsible for seeking out and punishing those behind 9/11, and the executive branch was in its right to establish a special category of prisoners captured in an area of battle and held outside the U.S. border.

It’s worth noting Thomas’ separate dissent, for he too was outraged, and for the first time in six years he read his opinion from the bench.

  • Concurring with everything Scalia said.
  • Most reprehensibly, the majority distorted the text of both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions in order to restrict the power of the president to establish military commissions when he deems necessary. Article 36 of the UCMJ authorizes the president to establish procedures for military commissions in a manner he considers practicable. “Far from constraining the president’s authority,” wrote Thomas, “Article 36 recognizes the president’s prerogative to depart from the procedures applicable in criminal cases whenever he alone does not deem such procedures practicable.”
  • The majority decision is an act of judicial imperialism, because it second-guesses a decision by the president in an area where he should be given deference, especially as he was acting — contrary to the claims of the majority — with the clear consent of Congress. According to Thomas, “military and foreign policy judgments are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.” It was thus outside the scope of the Court to hear this case, let alone to come to a decision which undermines the national security decisions of the Commander in Chief as authorized by Congress.

In my mind, the back-and-forth over the degree to which Congress oversees the executive, and which Geneva standards hold precedence over others, ties in large measure to the ongoing question of the legitimacy of Bush’s war on terror. In the wake of 9/11, Bush wasn’t able to get Congress to declare an act of war on Afghanistan and Al-Qaeda, but rather a War Powers Resolution, which is at the same time more restrictive, in terms of subjecting the executive even more to the legislative, and more open-ended, in that it gives the executive a blank check to widen its scope and use its “limited” military force against any state suspected to be remotely involved in the 9/11 attacks. (Bush did get Congressional approval for an act of war against Iraq a year later in 2002, but the accusation that Saddam harbored Al-Qaeda operatives was only a minor justification for that war, which really about the problems of Saddam’s dictatorship.)

I don’t have the competence to weigh the arguments of the Supreme Court majority against the dissenters, except perhaps on the point of whether or not Hamdan’s case should have been heard to begin with (I think not), which is a technicality. I will say that I smell fumes of judicial overreach. The year 2006 was a charged one, with everyone concerned about Bush and Cheney’s “dirty trends” in matters ranging from rendition torture, domestic wiretapping, and a general perception that the White House had hit the level of Watergate in Nixon’s time. Those concerns were valid, and I certainly shared them too, but whether or not the liberal justices were exercising sound or appropriate jurisprudence in reaction is still hotly debated.

Boumediene v. Bush (2008): Exasperated Scalia

This final case went to the core of the Constitution. The question was no longer who had jurisdiction where (as in Rasul), or whether Congress had authorized the military commissions or to what degree they explicitly had to, or to what standards tribunals must conform (as in Hamdan). The question was the vital one: Does the Constitution itself guarantee a right of habeas corpus to non-citizens of the United States, including non-citizens who are suspected of being enemy combatants?

The court’s answer — in a 5-4 liberal majority, penned by Justice Kennedy — was yes. Foreign enemy combatants at Guantanamo have the absolute right to pursue habeas challenges to their detention in U.S. courts. The Court ruled that Congressional laws like the Detainee Treatment Act (DTA) of 2005, and the Military Commissions Act (MCA) of 2006, were unconstitutional. Habeas corpus rights are fundamental to all people, even non-citizens. Congress can suspend habeas corpus in times of rebellion or invasion, but according to the Court, the Guantanamo situation does not apply.

Scalia of course dissented (joined by Roberts, Alito, and Thomas), arguing that no basis existed for judicial intervention beyond what provisions like the DTA and MCA allow, and that for the first time in history the Supreme Court was conferring constitutional rights to non-Americans:

“What drives today’s decision is neither the Constitutional meaning of habeas corpus, nor the principle of our precedents, but rather an inflated notion of judicial supremacy.”

Thanks to this ruling, he went on, he fate of enemy prisoners will now ultimately lie with the branch of government (the judiciary) that knows least about the national security concerns that the subject entails. Military attorneys will have to release evidence against enemy combatants to the terrorists’ own lawyers. U.S. troops serving in Iraq and Afghanistan could be called as witnesses. Detainees will have a legal right to access classified information. The Court’s decision sets military commanders the impossible task of proving to a civilian court that evidence supports the confinement of each and every enemy prisoner.

What I find fascinating about Boumediene v. Bush is that “Bush” seems to have driven the liberal majority’s decision more than “Boumediene”. If the justices were really concerned with (supposed) constitutional rights of non-citizens, then it’s hard to explain why they suddenly denied review of all Guantanamo cases after Obama got elected in 2008. During the Obama administration, the Supreme Court did nothing to enforce its rulings. The circuit courts continued to deny relief for Guantanamo detainees (whether rightly or wrongly) — for instance in the 2012 case involving prisoners who had been at the Bay for over ten years without any trial at all — but the Court has refused to reinforce its earlier decisions. It’s clear to me that the rulings between 2004-2008 were more about liberal crusades against the Bush-Cheney administration. Things were hardly different at Guantanamo under Obama… but then he was a “liberal” Democratic president.

“Humble” Scalia

No one thinks of him as humble — he habitually scorned those who disagreed with him — but Scalia certainly saw his legal role as a humble one. Adam Klein at Lawfare writes:

“As Scalia put it in Hamdi, it is not the Court’s place in American government to ‘Make Everything Come Out Right,’ but ‘merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions.’ The judge is not the great lawgiver but a humble parser of texts adopted by others. This may sound uninspiring, but it is in fact a great tribute to democracy. For it means that the people and their elected representatives, not unelected judges, are the protagonists in our national life.”

Right-wingers said that Scalia would put American lives at risk for defending suspects like Hamdi. Leftists faulted him for not supporting suspects like Hamdan. Scalia was less interested in outcomes, and more in process, which to me has always been the most important trait in a legal justice.


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