Deputy Solicitor General Paul Clement argued skillfully before the Supreme Court on April 28 for President Bush's claim that the military can grab any American suspected of being an "enemy combatant," anywhere, at any time, and hold him incommunicado for months, years, even for life, with no chance to see a lawyer or tell a court that he is an innocent civilian.
The justices were probably unaware that Clement and most other top Justice Department officials had strongly advised the White House to reject the disdainful stance toward due process of law favored by Donald Rumsfeld's Defense Department. But Rumsfeld and the White House would not budge. (This is according to three people privy to the sometimes heated internal administration debates on enemy combatants, which Clement declines to discuss.)
So Clement found himself defending the Pentagon's stark position that militarily detained citizens such as Yaser Esam Hamdi and Jose Padilla, whose cases the Court was considering, have no right to any semblance of due process unless and until the Pentagon has determined that further interrogation would be fruitless. This drew an impassioned response from Hamdi's attorney, Frank Dunham:
"When you take his [the government's] argument at its core, it is, 'Trust us.' And who's saying 'trust us'? The executive branch. And why do we have the Great Writ? We have the Great Writ because we didn't trust the executive branch when we founded this government. That's why the government saying 'trust us' is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment [guarantee] that no man shall be deprived of liberty except upon due process of law.... These detentions are not lawful, and I would respectfully ask this Court to step up to the plate and say so."
The impact of this eloquence was blunted by the brooding, post-9/11 awareness that for the foreseeable future, the justices, their marble palace, the rest of downtown Washington, and our way of life will be at risk of being vaporized by enemy combatants armed with one or more nuclear truck bombs. After all, our hopes of preventing such catastrophes rest upon the same executive branch that could itself threaten our freedoms if entrusted with too much power.
It's not hard to understand why, in these desperate times, our leaders have resorted to desperate measures. Foreign enemies, and unknown numbers of sympathizers who lurk in our midst, dream of bringing unimaginable horrors upon us. Contrary to many civil libertarians and human-rights activists, we need some form of preventive detention to protect ourselves from such enemies. Conventional criminal prosecution will not always be an adequate alternative. In some cases, the government's evidence cannot be revealed publicly without blowing intelligence sources, or will be less than airtight. In other cases, Miranda warnings and access to lawyers might preclude effective interrogation. And whenever there is even a small hope of extracting intelligence that might save thousands of lives, by subjecting a captured enemy to a week, a month, even a year of incommunicado grilling, maybe we should do it.
Even so, at least four of the justices seemed baffled by the government's refusal to provide Padilla, a suspected dirty-bomb plotter arrested at Chicago's O'Hare Airport, or Hamdi, an alleged Taliban fighter captured by the Northern Alliance in Afghanistan, even the cursory military hearings that are required for foreigners captured on battlefields abroad by the 1949 Geneva Conventions and U.S. military regulations.
Justice Stephen Breyer put it this way in questioning Clement: "Is there any reason why, when a person says, 'I am not a combatant'—'I was a relief worker'—'I wasn't even there'—'I was sold into this by people who wanted a bounty'—is there any reason why you could not have ... the kind of proceeding that was given on the Gulf War on the battlefield in hundreds of instances?" Clement, who appears to have posed similar questions to the Pentagon and the White House during internal administration debates, could not come up with much of a reason.
Breyer and the other three liberal justices seemed likely to hold that a citizen such as Hamdi or Padilla, detained far from any foreign battlefield, is entitled at least to a hearing before an impartial military tribunal, with a reasonable opportunity to present any evidence and arguments that he is not an enemy combatant, and with review of the military record by federal courts to ensure fundamental fairness.
And Justice Sandra Day O'Connor, who would be the fifth vote, also sounded skeptical of the Bush administration's "we-don't-need-no-stinking-due-process" stance. "How about ... a neutral decision maker of some kind, perhaps in the military?" she asked Clement. "Is that so extreme that it should not be required?" At another point, when Clement was stressing that prisoners of war have never been entitled to legal counsel, she interjected: "Have we ever had a situation like this, where presumably this status, warlike status, could last for 25 years, 50 years, whatever it is?"
Even if the Court does reject the Pentagon's approach, federal judicial review of military determinations of enemy-combatant status will be deferential. But that generalization masks some difficult questions: How much time for incommunicado interrogation? How reliable must the government's evidence be to justify continued detention? How far must it go to accommodate a detainee who wants to call far-away witnesses? What should be the burden of proof?
If judicial review amounts to a mere rubber stamp, the result could be to throw escalating numbers of Americans into the black hole of incommunicado detention. One need not be a member of Al Qaeda to be branded an enemy combatant by this administration, which calls Padilla a Qaeda "associate"—a notoriously slippery term that could be bent to justify wholesale detention of people with innocent connections to suspected Qaeda agents. In addition, it is far from clear that the government will always tell us whom it has thrown into military prisons. Americans might simply disappear, as did the more than 700 mostly harmless visitors from Muslim nations who were locked up on immigration charges in the wake of the 9/11 attacks. There is a plausible rationale for such secrecy: to avoid tipping off Al Qaeda as to which of its terrorists are locked up and which are still at large.
Unduly skeptical judicial scrutiny of military detentions of suspected enemy combatants, on the other hand, would risk releasing or leaving at large clever jihadists bent on murdering as many of us as they can.
The difficulty of determining with any confidence which suspects really pose a terrorist threat is illustrated by the case of the six Yemeni-Americans who trained for a few weeks at a Qaeda camp in Afghanistan and then returned to their unremarkable lives in Lackawanna, N.Y. Rumsfeld and Vice President Cheney argued for labeling them enemy combatants and locking them away, Newsweek has reported. But Attorney General John Ashcroft succeeded in steering them into the criminal-justice system, where they pleaded guilty to training at the camp.
Which approach makes more sense? And what should be done about similar suspects who have committed no crimes that can be proven without blowing vital intelligence secrets? Deputy Attorney General Larry Thompson called the Lackawanna six "a Qaeda-trained terrorist cell on American soil" when he announced their arrests. But later, the federal prosecutor whose office won the guilty pleas, Michael Battle, admitted that he could not prove that any of them had intended to commit or assist in terrorist acts. And an FBI agent on the case called one of them "an all-American kid."
In the end, The New York Times reported in a 9,000-word account, while "investigators wondered if the September 11 hijackers would have appeared any more nefarious in July 2001 than the Lackawanna men appeared in July 2002," the mountain of evidence about them was "profoundly ambiguous." Were they on their way to committing mass murder? Were they a bunch of harmless guys who had blundered unwittingly into a terrorist training camp while on a religious quest without ever intending to become terrorists? Nobody really knows.
If we throw all such suspects into military brigs, we risk becoming more like a police state. If we let those who cannot be prosecuted roam free, some might pull off catastrophes dwarfing 9/11. Such is the fragility of our freedoms, and of our lives, in this scary new century.