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Crossing the threshold (continued)

ON THE MORNING of June 10, 2002, criminal-defense attorney Donna Newman was driving to work. In the Manhattan federal courthouse where she was headed, Judge Michael Mukasey’s calendar indicated that her client Jose Padilla, a Brooklyn-born US citizen who had been jailed for nearly a month as a "material witness" for a federal grand jury, would appear for a hearing the next day, in which Mukasey would consider whether Padilla’s continued detention was justified. Then Newman’s cell phone rang: late the night before, military officials had come to Padilla’s cell and — without informing Newman — spirited him away to a Naval brig in Charleston, South Carolina, where he was being held incommunicado. Newman later told Time magazine she was incredulous — "This has never happened to anybody before" — and couldn’t help thinking it was a joke. But in a press conference later that day (broadcast, with insufficient attention to appearances, from Moscow), Attorney General Ashcroft announced that the president had classified Padilla an enemy combatant because he was "a United States citizen who had joined the enemy" by conspiring with Al Qaeda officials to detonate a radioactive "dirty bomb" somewhere in the United States.

After unsuccessfully seeking information about Padilla’s status from the Department of Defense, Newman hastily drafted a petition for a writ of habeas corpus on Padilla’s behalf, arguing that this military detention violated his constitutional rights and asking the court to order him released from military custody and returned to New York. The following morning, still denied information about her client’s status beyond what she could get from news reports, she filed the petition with Judge Mukasey.

Holding civilians in military custody is not entirely new, but it is extremely rare. In the past, it has also been limited in duration and subject to oversight by the courts. But grabbing both foreign nationals and US citizens, placing them in military custody, denying them access to friends, family, and attorneys, and then attempting to shield their jailers from judicial (and public) scrutiny is simply unprecedented.

The Justice Department has argued that Padilla’s detention is a matter for military decision-making and that respect for the separation of powers requires the courts to avoid inquiring too deeply. In words reminiscent of Orwellian Newspeak, the DOJ responded to Padilla’s habeas corpus petition this way: "The Court owes the executive branch great deference in matters of national security and military affairs, and deference is particularly warranted in respect to the exceptionally sensitive and important determination [of enemy-combatant status] at issue here." In other words, a constitutional right that only Congress can suspend and that assures an arrestee judicial review can be thwarted solely on the say-so of the branch holding him prisoner — and that for the judiciary to second-guess the jailer is a violation of the separation of powers! According to Ashcroft, the respect that one branch of government owes another goes in only one direction.

The DOJ initially also responded to Newman’s habeas petition by making the Catch-22 argument that Newman had no standing to bring the petition on Padilla’s behalf because she — denied access to her client by the military authorities holding him — had failed to consult him. Making matters worse, it attempted "forum shopping" — seeking to be heard by the court most favorable to one’s side — by requesting that the case be transferred some 700 miles south, to the District of South Carolina, where the prisoner was being held and where any appeal would go to the notoriously pro-government US Court of Appeals for the Fourth Circuit, in Richmond. Judge Mukasey, however, refused the transfer and ordered the government to provide Padilla with access to attorney Newman so that the two could respond to the government’s claims. The burden placed on the government was quite modest — all it had to do to keep Padilla locked up was show that there was "some evidence" supporting the enemy-combatant classification.

The Justice Department was not satisfied. It asked Mukasey to reconsider, arguing that Padilla should not be permitted to respond, because the only question was whether the government did indeed have "some evidence" to hold him; Padilla’s response to that evidence was irrelevant. And what was that evidence? A government declaration asserting little more than that the president had reason and authority to designate Padilla an enemy combatant. Revealingly, the DOJ decided to supplement that cursory justification with a second declaration, written by Vice-Admiral Lowell Jacoby, head of the Defense Intelligence Agency, which asserted that to provide Padilla access to a lawyer would "substantially harm national security interests" by offering him some hope of freedom: "Padilla is unlikely to cooperate if he believes that an attorney will intercede in his detention.... Providing him access to counsel now would create expectations by Padilla that his ultimate release may be obtained through an adversarial civil-litigation process. This would break — probably irreparably — the sense of dependency and trust that the interrogators are attempting to create."

Usually, when the government wants to convince a court not to grant a prisoner a right, it merely argues that the prisoner doesn’t need the right. Here, for the first time in memory, the government seeks to justify squashing a constitutional right (access to legal counsel) precisely because denying that right would further an improper goal (namely, using isolation to break Padilla’s will) — and it has the audacity not only to admit this to a court, but to seek the court’s assistance in preserving that coercive environment. This turns the rationale for granting constitutional rights on its head. The rule of law exists to prevent, not promote, such a sense of hopelessness in the face of unrestrained governmental power.

Judge Mukasey refused to be swayed, again ordering the military to grant Padilla access to Newman. Padilla, he said, should be permitted to learn some facts and to challenge the government’s evidence. Undaunted, the Department appealed to the Second Circuit Court of Appeals in New York, which had jurisdiction because Judge Mukasey had blocked the DOJ’s effort to move the case to the more compliant Fourth Circuit. The Second Circuit was even less persuaded than Judge Mukasey. Its 2-1 decision rejected the claim that the president has authority to detain those he alone defines as enemy combatants. In addition, the court said that the military detention of US citizens as enemy combatants violates the Non-Detention Act of 1971, which states: "No citizen shall be imprisoned or detained by the United States except pursuant to an act of Congress." Congress has not passed any kind of enemy-combatant statute. The New York panel of judges, on December 18, 2003, ordered Padilla released within 30 days to face criminal charges in the civilian justice system — the order that the Supreme Court agreed to review on an expedited basis so that it could be decided along with the Guantánamo and Hamdi cases.

As the New York arm of the Justice Department chafed against both the Manhattan trial judge’s and the Second Circuit’s exercise in judicial independence, their colleagues to the south were, predictably, having better luck with Hamdi’s case, which was being heard by the executive-friendly Fourth Circuit. In this case, the Justice Department went a step further than it did in Padilla and argued that the courts should give total deference to executive judgments: "A court’s inquiry should come to an end once the military has shown ... that it has determined that the detainee is an enemy combatant." In other words, the government did not want to have to produce any evidence, other than the circumstances of his capture, to justify detaining Hamdi. This argument was based on the fact that Hamdi, unlike Padilla, was captured by the military outside the territorial limits of the US. The DOJ claimed that the courts simply have to accept the military’s conclusion that, based on that circumstance alone, the prisoner is an enemy combatant. A three-judge panel of the Fourth Circuit agreed, ruling that a lone document asserting that Hamdi was captured while in a "zone of active combat operations" (regardless of his purpose for being there), submitted by a government official who was not even a direct witness to the capture, was sufficient to end the inquiry.

That Hamdi’s case was heard by the Fourth Circuit, widely considered the most pro-government of all the federal courts, gave the government an advantage. Interestingly, however, even the Fourth Circuit was not as united and deferential as the DOJ might have wished in Hamdi’s case. In deciding not to reconsider the three-judge panel’s decision, the full Fourth Circuit split eight to four. The dissent penned by Judge Diana Gribbon Motz drove to the heart of the issue, expressing alarm that "a short hearsay declaration by ... an unelected, otherwise unknown, government ‘advisor’" was sufficient basis for deciding the court had no power to question this exercise of executive authority, and hence no further habeas role. But Judge Motz was in the minority, and the attorney general thus effectively circumvented Representative Sensenbrenner’s refusal to consider including the suspension of habeas corpus in the Patriot Act.

In addition to Padilla and Hamdi, the court will consider the rights of the nearly 700 noncitizens detained at the US military base in Guantánamo Bay, Cuba. This site — a broad expanse of cell blocks hastily welded out of stacks of shipping containers turned on their sides, surrounded with razor wire, draped with green plastic sheets, and placed under the glare of outdoor halogen lamps — was selected for a very deliberate reason. The curious legal status of the land at Guantánamo — occupied by the US under a long-term lease granted by the Cuban government in 1903 — means that although it’s under US control, it is technically not part of the sovereign territory of the United States. American power controls Guantánamo, but American justice does not prevail.

In Rasul v. Bush and Al Odah v. United States, the two habeas corpus petitions brought on behalf of several Kuwaitis, Australians, and Britons held at Guantánamo, the Court of Appeals for the DC Circuit used this lease status, together with the noncitizen status of the detainees, as grounds to refuse to assert jurisdiction — and therefore to deny the right of review: "[N]o court in this country has jurisdiction to grant habeas relief ... to the Guantanamo detainees, even if they have not been adjudicated enemies of the United States." When the prisoners sought Supreme Court review, the DOJ objected with the remarkable argument that the law "does not establish that aliens detained by the military abroad are without any rights or process, but rather that the scope of those rights or procedures are to be determined by the Executive and the military, and not the courts." In other words, argued the DOJ, the president — not the Supreme Court — gets to determine the rules. The US Supreme Court, rising to this challenge to its authority, agreed to hear arguments on the question of the judiciary’s role and power.

Some Guantánamo detainees will soon be tried in the executive branch’s new military tribunals, which (if the DOJ has its way) will have the power to impose capital punishment free of any civilian judicial review of the penalty, the verdict, or even the grounds for declaring the condemned to be enemy combatants in the first place. This marks a huge departure from both normal courts-martial and the World War II tribunals that the DOJ claims are its model. According to rules recently issued by the Department of Defense, tribunals can now block defendants and their lawyers from obtaining any evidence — classified or unclassified — that prosecutors deem "protected information" for unspecified "national security" reasons, including evidence of innocence. Defense lawyers are required to report to the government certain types of "national security" information learned from their clients, and attorney-client conversations may be monitored for "intelligence purposes" — provisions that violate both legal ethics and the attorney-client privilege. Defense lawyers are barred from hiring outside consultants or experts. And prisoners have no right of appeal to civilian courts — a provision to which even military defense lawyers have objected. Even if a Guantánamo detainee manages to win an acquittal from a military tribunal under these circumstances, it could be a Pyrrhic victory; the government has reserved the power to hold military-tribunal defendants indefinitely, even if they are found not guilty. There is an old lawyers’ quip that military justice is to justice what military music is to music, but these new rules — particularly those barring civilian-court review — force military justice a huge step further down into the dungeon.

Some have attempted to justify these secret proceedings as a way to protect sensitive national-security information from falling into the wrong hands. In effect, they argue that any FBI agent or military official with an executive-branch security clearance is more trustworthy than a federal judge appointed for life by the president and confirmed by the Senate. Whatever the real reasons why the administration seeks to keep judges’ noses out of the darker corners of these military prisons, surely fear that judges cannot be trusted to keep secrets in the name of national security cannot seriously be one of them.

Unless the Supreme Court rejects the DOJ’s arguments in these three cases, the department will have effectively emasculated the Great Writ, and done so not by defying the court, but with its acquiescence. Ashcroft will accomplish indirectly what Sensenbrenner warned him against trying directly in the Patriot Act.

On June 5, 2003, Ashcroft told the House Judiciary Committee: "When a person is part of a war against the United States as a combatant against the United States, that person is subject to detention under the power of the president to protect the United States. And the courts have not interfered with that in any significant way. And I don’t think courts will." If Ashcroft is correct, and the Supreme Court bows to the government in the three enemy-combatant cases now under review, then the most fundamental underpinning of liberty will have all but disappeared in the hard cases for which the writ was designed, and no one will be able to claim that the president either suspended the writ or otherwise acted lawlessly. Tyranny will be clothed in the garments of legitimacy.

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Issue Date: March 5 - 11, 2004
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