June 10, 2002, the day John Ashcroft announced the arrest of Jose Padilla, marked a low point in Ashcroft's career as Attorney General. The FBI had nabbed Padilla, a.k.a. Abdullah al-Muhajir, a full month earlier, at Chicago's O'Hare International Airport, and Ashcroft happened to be in Moscow when the government decided to disclose the arrest. Unwilling to leave the announcement to anyone else, he breathlessly took to the airwaves to declare that the Administration had "disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb." "Let me be clear," Ashcroft said. "We know from multiple independent and corroborating sources that Abdullah al-Muhajir was closely associated with al-Qaeda, and that as an al-Qaeda operative he was involved in planning future terrorist attacks on innocent American civilians in the United States."
Ashcroft's peculiar exercise in self-promotion backfired badly. For one thing, it infuriated the White House. Not only did the Attorney General seem to take credit for the arrest, but he rather overstated its drama. Any dirty-bomb plot—if that's what Padilla was indeed involved in—was far from "unfolding"; it had barely been hatched, as other officials hastened to clarify. Padilla, an American and a former gang member who had committed murder as a juvenile and had become a Muslim in prison, had returned to the United States from Pakistan in order to scout out possible targets for al-Qaeda attacks, according to the government. Detonating a dirty bomb was one of the possibilities he had researched in Pakistan, where he had allegedly spent time over a few years meeting and training with al-Qaeda operatives. But as Deputy Defense Secretary Paul Wolfowitz explained at a later news conference, "There was not an actual plan." The FBI stopped Padilla "in the initial planning stages."
Ashcroft's race to the microphone also helped attach his face to one of the most controversial security policies of the post-9/11 Bush Administration: its assertion that it may imprison indefinitely those it deems "enemy combatants" in the war on terror, even if they are American citizens. Ashcroft announced from Moscow not merely that the government had arrested Padilla but also that he and the Defense Department had "recommended that the President of the United States, in his capacity as commander in chief, determine that [Padilla] is an enemy combatant who poses a serious and continuing threat to the American people and our national security." As a result, Ashcroft stated, Padilla had been "transferred from the custody of the Justice Department to the custody of the Defense Department"—where he has remained ever since without charge or trial, and for much of the time without access to his lawyer.
By the end of this June the Supreme Court will rule on Padilla's case and that of Yaser Esam Hamdi, the only other American citizen currently in Pentagon custody as an enemy combatant—and also, separately, on the jurisdiction of U.S. courts over the cases of noncitizen combatants held at Guantánamo Bay. In doing so the justices will effectively make new law, defining to a great extent the scope of presidential powers, individual liberties, and judicial oversight in the war on terrorism. The justices will, in a very real sense, define whether the "war on terrorism" is a real war at all—that is, a conflict that triggers the full array of presidential powers, including the power to detain enemies—or simply a rhetorical device, like the war on drugs and the war on cancer. At oral arguments on April 28 the justices probed both sides with tough questions, expressing concerns about detention with so little oversight, about infringing on presidential war powers, and—in Padilla's case—about whether the Supreme Court has jurisdiction to decide the matter at all. The Court did not clearly tip its hand as to how it will rule.
If the "enemy combatant" cases of Padilla and Hamdi present a clash between liberty and security, each side champions one while giving short shrift to the other. The military wants to treat terrorism cases under the laws of war—indeed, under a particularly convenient reading of those laws from the Administration's point of view. Civil libertarians and defense lawyers insist on using the more rights-friendly criminal-justice system. In other words, although common rhetoric holds that the war on terrorism is a "different kind of war," neither side entirely accepts the implications of that observation. At the heart of the civil-libertarian position lies a partial denial that the current war is, legally speaking, real—or real enough to substantially broaden presidential powers. Meanwhile, the Pentagon balks at the suggestion that the war is different enough to require any heightened judicial review, legal accountability on the part of the executive, or procedural protections for those captured in "combat."
Between these extremes a few voices of moderation have struggled to be heard. Behind the scenes in Washington one of those voices belongs to the civil libertarians' bête noire, John Ashcroft. This is surprising, given Ashcroft's Moscow stunt—which, after all, played perfectly to his existing image. As one former senior Justice Department official ruefully summarized it, Ashcroft has come to represent the "hardened, religiously inspired zealot who is looking to take away everyone's civil liberties." He supervised the roundup of aliens after September 11 and zealously guarded the secrecy concerning their detention. He championed the Patriot Act. He promulgated regulations allowing the government to monitor lawyers' conversations with imprisoned clients suspected of active terrorist ties. The Attorney General's proud declaration—and the Justice Department's subsequent energetic defense—of the President's authority to hold an American citizen like Padilla in military custody seemed like just more of the same.
But in the debate over Padilla and Hamdi the Attorney General has proved a relative softy. In fact, holding American citizens as enemy combatants was less the Justice Department's preference than the Pentagon's, though one would not know this from the public posture of either agency. Defense Secretary Donald Rumsfeld scarcely mentions Padilla or Hamdi, leaving questions about the Administration's policy to Justice Department lawyers. Those lawyers are obliged to defend any government policy for which they can advance a reasonable argument. As the months of detention turned into years, however, close observers of the enemy-combatant cases began to see hints of a fissure between the Pentagon and the Justice Department. Ashcroft's aides grew increasingly frustrated as their boss took heat for the policy, and word began to leak out that the Attorney General and his staff were pushing to temper key aspects of it. Recent press reports have even disclosed that the deputy solicitor general, Paul Clement—the government's chief counsel on the cases, who has publicly argued the hard line before numerous courts—was internally urging a more moderate stance.
On the record, even former department officials are circumspect about this difference of opinion. Viet Dinh, who served as assistant attorney general for legal policy, coyly describes "a systemic and healthy tension between the Justice Department and other departments engaged in the war on terrorism—including the Department of Defense." He insists that although the Justice Department has a voice, "at the end of the day the decision" on enemy combatants "is made by the client agency and approved by the President." Speaking on condition of anonymity, sources are more explicit. The rumors of a rift within the Administration are "absolutely true," a former senior Justice Department official told me recently. "There are a lot of people who can't wait for the background documents to come out. History will view John Ashcroft very differently than his contemporary critics do." Ashcroft's position, this source emphasized, is not one that civil-liberties groups would find congenial, but neither is it the hard-line stance that Justice Department lawyers have taken in court. In particular, Ashcroft did not believe that Padilla and Hamdi should be denied meaningful access to counsel. The Justice lawyers "took that position because they're good team players and they know who the client is," the former official said. "But this is an incredibly difficult argument to make, and Ashcroft and [Solicitor General] Ted Olson and Clement are personally deeply uncomfortable with it."
When the military first shipped Hamdi to the United States, in April of 2002, his case seemed more a curiosity than a flash point in the legal war between the Bush Administration and its civil-libertarian critics. Two months earlier the Justice Department had indicted John Walker Lindh, the famed "American Taliban" from Marin County, California, on conspiracy and gun charges. Next to the case of the suburban teenager who trekked halfway around the world to take up arms for Islamic fundamentalism, Hamdi held little fascination. His American birth and consequent citizenship were an accident of fate: his Saudi Arabian father happened to be working in Louisiana in 1980, when Hamdi was born. Rather than an American rebelling against his upbringing, Hamdi appeared to be simply another Middle Eastern youth who found the Taliban an attractive cause.
Why the military took Hamdi from the Guantánamo Bay naval base in Cuba (where he had been held with other Taliban and al-Qaeda detainees following his capture by the Northern Alliance) to its brig at Norfolk, Virginia, and later to a brig in South Carolina, remains somewhat murky. The goal does not seem to have been to prosecute Hamdi under criminal law, as Lindh was prosecuted (though the Justice Department did consider it). Instead, the transfer was motivated in part by practical concerns—one of which, according to a former Justice Department official who was involved in the decision, was whether having Hamdi at Guantánamo would "subject the whole base to judicial review" if he challenged his detention in court. But the "primary motivation," this official says, was the very idea the government now rejects in court: that citizens are somehow different from other combatants, and consequently that "enemy combatants who are citizens are just going to be treated differently and brought back" to U.S. territory.
Representing Hamdi is Frank Dunham, the federal public defender in Alexandria, Virginia. The federal courthouse in Dunham's district has become a kind of front line in the legal war on terror—a function of its proximity to Washington and its prosecution-friendly environment: Virginia is within the jurisdiction of the Fourth Circuit Court of Appeals, perhaps the country's most conservative appellate court. Dunham has seen more than his share of combat duty: in addition to representing Hamdi, he defends the accused 9/11 conspirator Zacarias Moussaoui. Before Hamdi showed up, it had looked briefly as if Dunham might be assigned to Lindh's case as well, and it was his brief involvement with Lindh's defense that triggered his concern for Hamdi.
Dunham assumed that Hamdi would be indicted and prosecuted, just as Lindh had been. He told me, "The whole case against Lindh was based on statements that he made after he had been captured. And so I was anxious to ... get in there and advise [Hamdi], who I was sure had probably already made statements, not to make any more." But Hamdi's not talking was the last thing the Administration wanted. Officials have often emphasized that their purpose in detaining enemy combatants is not punishment; rather, it is to disable them as fighters and to interrogate them for intelligence purposes. So it's not altogether surprising that when, in mid-April of 2002, Dunham wrote a letter asking to see his putative client, the government did not leap to accede. In fact, Dunham received no response beyond a cursory acknowledgment that his request had been "forwarded to appropriate officials." After three weeks of waiting he went to court to challenge the detention—still assuming, he says, that an indictment was on the way.
It wasn't—but the Pentagon was in no rush to make this clear. Initially the government stalled even on stating a legal basis for its detention of an American citizen without either charge or access to a lawyer. At a hearing before a magistrate on May 20, 2002, while arguing for more time to respond to Dunham's challenge and against Dunham's gaining access to Hamdi in the meantime, a government lawyer stated formally, "It's the position of the [government] that Mr. Hamdi is an unlawful enemy combatant, and ... that's why he's being held under these circumstances." But the Administration did not make its full position clear until June of 2002, after the case had made the first of its three trips to the Fourth Circuit. At that point the Pentagon claimed not only that it could lock Hamdi up as an enemy combatant with "no right of access to counsel to challenge [his] detention," but also that the courts had no authority to examine the designation. "The court may not second-guess the military's enemy combatant determination," the brief contended. "[Its] inquiry should come to an end once the military has shown ... that it has determined that the detainee is an enemy combatant." Enemy combatants may be held "at least for the duration of a conflict"; allowing lawyers into the picture "is likely to interfere with if not irreparably harm the military's ongoing efforts to gather intelligence that may protect American interests and lives in the war effort and help protect the home front from further attacks."
The Office of the Solicitor General filed this brief only days after Ashcroft announced Padilla's arrest; suddenly the detention of Americans as enemy combatants appeared much more threatening to civil liberties. Unlike Hamdi, Padilla had not been captured on a distant battlefield. Civilian law enforcement had detained him domestically as a material witness in the 9/11 investigation. Placed in the civilian justice system, he had been assigned a lawyer, Donna Newman, and permitted to meet with her over the course of a month. By June, when the Pentagon shipped Padilla to a brig in South Carolina, any conceivable threat from him had long since been neutralized. Yet a stroke of President Bush's pen declared him "a continuing present and grave danger to the national security of the United States," and stripped him of all the protections of the civilian system. Depriving him of those rights made it easier to interrogate him for intelligence purposes, and relieved the government of a vexing problem: how to try a man against whom the evidence came from detainees abroad, who could not easily be produced in federal court. But it also raised disturbing questions. If a court could not look behind the government's allegations against Padilla or Hamdi, what would prevent the Administration from arbitrarily detaining political foes, domestic critics, or nonviolent Muslim radicals? For that matter, what would protect citizens against simple error?
The Administration has since moderated its position somewhat. Early on, in response to a preliminary Fourth Circuit ruling on Hamdi's case, the government dropped its claim that the courts had no power to hear the evidence behind an enemy-combatant designation. Instead it filed a pair of declarations, one for each case, by a Defense Department official named Michael Mobbs. Mobbs, who claimed no firsthand knowledge of any of the facts, alleged that around July or August of 2001 Hamdi had gone to Afghanistan, where he "affiliated with a Taliban military unit and received weapons training." Hamdi carried a gun and stayed with that unit after 9/11, Mobbs said, until it surrendered to America's local allies, in "late 2001." Mobbs did not claim that Hamdi had ever fired a shot. In a somewhat longer declaration Mobbs alleged that Padilla had "been closely associated with known members and leaders of the Al Qaeda terrorist network" while abroad, and that he and an accomplice had approached the senior al-Qaeda figure Abu Zubaydah "with their proposal to conduct terrorist operations within the United States." Mobbs reported that Padilla received explosives training in Pakistan from al-Qaeda, researched the construction of a dirty bomb, and discussed detonating such a device "within the United States, possibly in Washington, D.C." Although he noted that one source doubted whether Padilla was a "member" of al-Qaeda, Mobbs nevertheless concluded that Padilla had been sent to Chicago to "conduct reconnaissance and/or other attacks on their behalf."
With the Supreme Court eyeing Hamdi's case late last year, the government relaxed its policy still further, finally allowing both men to meet with their lawyers at the South Carolina brig. Their intelligence value had been exhausted, the Pentagon said, and the Administration declared that it had a policy of permitting access to counsel as soon as military and intelligence interests were satisfied—though it had not formally stated this position until the threat of Supreme Court review loomed.
The Pentagon, however, has not wavered from its core position: the President has the authority to designate enemy combatants, and the courts have no authority to gather evidence beyond what the government submits. Consequently, enemy combatants, even if they are American citizens, have no right to challenge the evidence against them or to consult with lawyers. Any access to counsel the government provides is merely an act of grace. And, at least for alleged al-Qaeda operatives, this state of affairs can persist until the war on terrorism is over—a time officials have repeatedly said may never come. In other words, the government is asserting an essentially unreviewable power to detain forever those the President claims are terrorists.
Much as this argument may shock the rights-oriented consciousness of the American public, the government's position has a long and distinguished history. In fact, many aspects of the argument are disturbingly difficult to dispute. There is something deeply incongruous, for example, about judges' reviewing battlefield decisions like the one that put Hamdi in military custody, or defense lawyers' cross-examining military officers about a detainee's capture. The adversarial judicial process was not designed for overseeing the conduct of wars; the Constitution gives this responsibility to the executive branch.
"The Keystone Kommandos" (February 2002)
Just months after Pearl Harbor the Third Reich secretly sent two small teams of would-be saboteurs to the United States. But things went badly wrong. What happened is a story of confusion, low comedy, and betrayal—and the creation of a precedent for the military tribunals being proposed by the Bush Administration today. By Gary Cohen.
Moreover, Americans have served in foreign armies in the past, and the Supreme Court has never suggested that their nationality entitles them to be treated differently from other combatants if they are detained. The Court considered this issue in the now famous 1942 case of a group of Nazi saboteurs sent to U.S. shores to disrupt war industries. Like Padilla, the saboteurs were caught by civilian law enforcement, not by soldiers on a battlefield. And two of them, like Padilla and Hamdi, claimed American citizenship. Yet this moved the Court not at all: "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents." Courts have never given enemy combatants lawyers to challenge their detention. How different, really, is an al-Qaeda operative bent on detonating a dirty bomb from a German saboteur during World War II?
At one level the two are hardly different, yet the analogy ultimately breaks down. To begin with, al-Qaeda is not a traditional uniformed military force—in fact, it's not a geographically distinct military force at all. Rather, it is composed of cells, scattered worldwide, whose members seek to blend into the societies they wish to destroy. The organization's very nature makes distinguishing between combatants and noncombatants extremely difficult. When captured, al-Qaeda operatives often deny their affiliation; Padilla's lawyer, for example, does not concede any of the government's allegations against her client. In traditional conflicts, identifying enemy fighters is simpler. The Nazi saboteurs never disputed their belligerency; they only questioned whether the military tribunal that tried them was a lawful one.
But if fighting wars is a matter for the executive branch, resolving factual disputes with dire legal implications for an accused person's liberty is a matter for the judiciary. In a speech earlier this year Alberto Gonzales, the White House counsel, argued against strenuous judicial review of the Administration's process for designating enemy combatants. That process, he said, is rigorous and multi-layered enough for the public to have confidence that "the President's Commander-in-Chief authority is exercised in a reasoned and deliberate manner." This is an argument only an executive-branch official could love. A world of sleeper cells against which the tools of domestic law enforcement are routinely deployed argues strongly for a judiciary that plays some role in preventing executive error.
More fundamentally, the idea of holding detainees until the end of hostilities makes no sense in a war for which we have no clear definition of victory. That idea assumes that wars take place between states or other political bodies that will eventually negotiate peace. An army fights not with any individual combatant, the theory goes, but with the entire opposing force. Under international law, captured enemy fighters who obey the laws of war—commonly known as prisoners of war—are therefore granted an honorable status, protected against most prosecution, and ensured generous treatment and a promise of repatriation when hostilities end. But in this case nobody can foresee the day when hostilities will end. Not only that, but America is very much at war with al-Qaeda members—individually as well as collectively. If we were ever to defeat the organization completely, repatriating prisoners would most likely cause hostilities to begin anew.
The Pentagon is denying Hamdi and Padilla not only the due process of the civilian criminal-justice system but also the process promised by military regulations and the laws of war. It treats them (and all the other captives) not as prisoners of war but as "unlawful combatants"—fighters who do not themselves observe the laws of war. This is not an unreasonable judgment, since neither the Taliban nor al-Qaeda operates as a regular fighting force. But the Geneva Convention requires individualized hearings before a "competent tribunal" to determine POW status, and the Administration has bullheadedly refused to provide any of the war-on-terrorism detainees with such a hearing. Hamdi and Padilla have been locked up under conditions that presuppose the illegality of their behavior, with no forum in which to argue either that they were not combatants or that they are entitled to be treated as POWs.
The absence of due process has bothered Ashcroft and other Justice Department officials. According to a former senior official, Ashcroft agreed with the Pentagon that the President has the authority to designate an enemy combatant, and that such a person does not have the same right to counsel as a criminal defendant. But according to this source, Ashcroft felt that an American citizen does have the right to challenge his detention. And since access to a lawyer is necessary to exercise that right, he was uncomfortable with permanently impeding a citizen's access to a lawyer.
Various proposals that sought to protect the Pentagon's needs while allowing Padilla and Hamdi meaningful access to counsel floated around the department. The Administration considered delayed access—the route it ultimately took. It considered appointing military lawyers or appointing outside counsel who had been cleared to see classified information, and letting them see the fruits of interrogations. Those lawyers could argue before the courts that the interrogations were no longer delivering valuable intelligence, and thus that full access to their clients would do no harm. The Supreme Court's decision to examine the matter greatly strengthened the Justice Department's hand, because the Pentagon then became concerned about an adverse ruling. In fact, the Administration's ultimate decision to let citizen enemy combatants consult lawyers when possible reflects in part a desire to make its case as attractive as possible for the Court. Gonzales has acknowledged as well that the Administration would have designated more American citizens as enemy combatants if the Justice Department had not been serving as a brake on the Administration.
Frank Dunham says he has recently noticed a marked change in the behavior of Justice Department lawyers toward him (from "cold" and "impersonal" to collegial), leading him to wonder whether they might earlier have felt constrained by the Pentagon's concerns. Donna Newman also thinks the Justice Department's lawyers have been caught between their legal instincts and the demands of the military. On the surface the Administration seems united, she says, but "there's an undercurrent there of non-agreement, and it certainly cuts against the Justice Department's historical position."
Of course, civil libertarians generally deny outright that an American citizen can lawfully be held as an enemy combatant. Dunham says the government's only choice with respect to Hamdi is to "charge him with a crime or let him go." Newman says the same about Padilla. This argument effectively rejects the premise that the war on terrorism is a literal war—at least one that should grant the President the powers that wars have traditionally given the executive branch. Few would claim, after all, that an American citizen who had been caught fighting with an Iraqi army unit would be entitled to be freed if he could not be charged. How are Hamdi and Padilla different from such a citizen? Critical to their cases is a federal law stating that Americans cannot be held without charge absent an act of Congress. Although President Bush did get congressional authorization 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," Dunham and Newman argue that this resolution did not specifically authorize detention of American citizens without charge. But under this logic the government could not detain Hamdi or Padilla as an enemy combatant even if he announced in open court (as Zacarias Moussaoui did) that he was an al-Qaeda operative. It's a little hard to see why "all necessary force," which clearly includes the power to kill, does not also include the lesser power to detain.
More generally, the defense argument rests on the myth that in America the government cannot detain people without charge. In fact people are locked up without criminal charges all the time—even in peacetime. Witnesses in criminal cases can be detained as material witnesses for "a reasonable period of time" if the court believes they might flee. The government takes aliens facing deportation into custody without accusing them of criminal wrongdoing. The state can hold mentally ill people indefinitely if they present a danger to themselves or others. If a schizophrenic, whose condition is not his fault, can be locked up without criminal charge, why must an al-Qaeda operative, who may be far more dangerous (and for reasons that are his fault), be indicted or released? The difficult question is not whether noncriminal detentions can be lawful but, rather, how the courts should scrutinize them and whether that scrutiny sufficiently protects a detainee from arbitrary or malicious government abuse.
Hamdi's and Padilla's cases have progressed differently. The former's bounced up and down the appellate ladder as the Fourth Circuit tried to rein in an aggressive district judge, Robert G. Doumar, who sought to examine in detail the intelligence reports that formed the basis of the Defense Department's claims against Hamdi. The court's ruling, handed down by a three-judge panel in January of 2003, bought the Administration's argument almost completely. The court noted that Hamdi's pleadings, which Dunham had filed at the request of his client's father and without consulting the inaccessible Hamdi, appeared to concede that he had been caught in Afghanistan. Seeking to rule narrowly and restrict itself to battlefield detentions, the court unanimously declared that "[where] it is undisputed that [the detainee] was captured in a zone of active combat operations abroad, further judicial inquiry is unwarranted when the government has responded to the petition by setting forth factual assertions which would establish a legally valid basis for the petitioner's detention." Of course, nobody knew what facts Hamdi might dispute if given the chance. So Dunham appealed—first to the full Fourth Circuit and then to the Supreme Court.
Padilla's case, meanwhile, remained in the hands of Chief Judge Michael Mukasey, in federal court in New York. In December of 2002 Mukasey issued what remains the most thorough and intellectually compelling opinion yet written on the subject of enemy combatants. Yes, he wrote, the President does have the authority to detain enemy fighters without necessarily bringing criminal charges against them, even if those fighters happen to be citizens. Congress has authorized war, and "the authority conferred by the Joint Resolution [authorizing force] itself is broad," he wrote. "[It] authorizes action against not only those connected to the subject organizations who are directly responsible for the September 11 attacks, but also against those who would engage in 'future acts of international terrorism' as part of 'such ... organizations.'" Clearly, if the government's allegations proved true, Padilla fit this category. Moreover, Mukasey adopted a highly deferential standard of review: if "some evidence" supported the military's position, he would okay the detention. But unlike the Fourth Circuit, Mukasey did not accept that Michael Mobbs's declaration of allegations against Padilla was all he needed to see. He wanted to hear from Padilla himself before consigning him to his fate. "The government has not disputed Padilla's right to challenge his detention by means of a habeas corpus petition," Mukasey wrote, and "Padilla's right to present facts is rooted firmly in the statutes that provide the basis for his petition." Consequently, "[his] need to consult with a lawyer to help him do what the statute permits him to do is obvious." Mukasey noted the government's warnings that giving Donna Newman access to Padilla would interfere with Padilla's interrogation or allow him to pass messages through her to al-Qaeda confederates, but he was not deterred by them.
Mukasey's Solomonic effort ultimately satisfied neither side; each appealed the aspects of the ruling unfavorable to it. Newman initially described the opinion as "significant for Mr. Padilla, and ... significant for all citizens," and pushed unsuccessfully to have its access-to-counsel portion swiftly implemented. Yet she later asked an appeals court to reverse Mukasey's opinion that the President had the power to hold her client at all. The American Civil Liberties Union—which had been quick to brand the ruling "a crucial rejection of the Bush administration's claim of almost unbridled power to unilaterally detain an American citizen and hold him indefinitely and incommunicado"—supported her appeal.
Justice Department officials have privately expressed agreement with Mukasey's ruling. Viet Dinh, the former legalpolicy chief, says his personal views are "identical" to Judge Mukasey's. Yet at the Pentagon's behest the Justice Department has done everything in its power to get the opinion reversed. First, Justice Department lawyers asked Mukasey to reconsider, asserting that the department's prior briefing "failed sufficiently to focus on the grave damage to national security interests that would result from interference with the interrogation of Padilla." And the department submitted an affidavit from Vice Admiral Lowell E. Jacoby, the director of the Defense Intelligence Agency, warning that "anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool." In other words, any hope Padilla harbors that the legal system will save him reduces the chances that he'll deliver valuable intelligence.
When Mukasey refused to yield, the Justice Department went over his head. This proved, at least in the short term, a disaster for the Administration. The Second Circuit Court of Appeals, which has jurisdiction over New York and is one of the country's more liberal appellate tribunals, ruled that the military had no authority to hold Padilla without "specific congressional authorization." The two-to-one majority wrote that the President lacks any inherent power to detain an enemy combatant outside a battlefield, and that the congressional authorization of force did not confer "clear" and "unmistakable" permission to detain citizens: "While it may be possible to infer a power of detention from the Joint Resolution in the battlefield context where detentions are necessary to carry out the war, there is no reason to suspect from the language of the Joint Resolution that Congress believed it would be authorizing the detention of an American citizen already held in a federal correctional institution."
In both enemy-combatant cases the dissenting judges demonstrated far more sophistication than those who wrote the majority opinions. When the full Fourth Circuit declined to reconsider the three-judge panel's opinion in the Hamdi case, Judge Diana Gribbon Motz conceded, "Precedent dictates that we must tolerate some abrogation of constitutional rights if Hamdi is, in fact, an enemy combatant." But she insisted that there must be some mechanism for confirming the executive's determination of Hamdi's status: either some judicial examination of the intelligence underlying Mobbs's declaration or some ability on Hamdi's part "to proffer affirmative evidence of his 'non-combatant' status" if he disputed the government's allegations. When the Second Circuit ruled, Judge Richard Wesley pointed out that by denying the Pentagon's right to hold Padilla at all, his court had failed to address "the real weakness of the government's appeal"—the more specific contention that "Mr. Padilla can be held incommunicado for 18 months with no serious opportunity to put the government to its proof by an appropriate standard."
Will the Supreme Court rule more constructively than the two lower courts did? Only if it acknowledges that neither the laws of war nor America's criminal-justice rules provide a complete model for the war on terrorism—and that the two systems will have to be blended. Ideally, the blending process would take place not in the courts but in Congress, which is supposed to be responsible for writing laws. But not many legislators seem willing or able to take on the tough task of synthesizing the insights of the rules of war and the criminal-justice system. Adam Schiff, a Democratic congressman from California, has introduced a bill that would authorize the detention of U.S. citizens as enemy combatants but would require the Pentagon to set standards that "guarantee timely access to judicial review to challenge the basis for a detention, and permit the detainee access to counsel." The bill has no Senate counterpart, however, and Schiff has been unable even to get it a hearing. So the Supreme Court will take the first crack at crafting a reasonable process under which enemy-combatant cases may proceed. The justices could do a lot worse—and they could not do much better—than to make national law out of Mukasey's opinion.
How would Hamdi and Padilla fare under the process outlined by Mukasey? My guess is badly. Padilla is most likely an evil guy; Hamdi, though far less menacing, was found in Afghanistan. His father has said he was doing relief work, but that would be a tough case to make. It seems highly likely that the government would prevail in both instances.
But who knows? In March I had lunch with Frank Dunham, shortly after he had finally been granted an unmonitored meeting with his client. Everything Hamdi had said was classified, so he couldn't tell me anything about the substance of their conversation. He did, however, tell me what had triggered the visit. In an earlier session he had given Hamdi a copy of Mobbs's declaration of government allegations against him, and Hamdi had responded with a letter saying, in Dunham's paraphrase, "I have very important information that you need to know before you go before the Supreme Court." In light of Hamdi's response, I asked, was Dunham confident that he had an issue to litigate if the Supreme Court gave him a chance?
"I like my hand better than theirs—a lot better," he said without hesitation. "And I would love—dearly love—to get Michael Mobbs up on that witness stand and have at him over that statement he wrote."
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