At the Supreme Court last week, the lawyers for two American citizens being indefinitely detained as enemy combatants called the government's actions an unprecedented departure from America's constitutional traditions. "We've had a war on our soil before, and never before in this nation's history has this Court granted the president a blank check to do whatever he wants to American citizens," said Jennifer Martinez, representing the alleged dirty bomber, Jose Padilla. Law professors who filed briefs in the case were even more scathing. "To accept the Government's position 'would be effecting a sea change in the constitutional life of this country, and ... would be making changes that have been unprecedented in civilized society,'" wrote Harold Koh, Louis Henkin, and Michael Posner.
In many senses, the Bush administration's actions are, indeed, unprecedented. In the past, U.S. law distinguished between lawful combatants, who were held as prisoners of war until the end of hostilities, and unlawful combatants, who were tried by military tribunals. But the administration has created a new category called "enemy combatants," who may never be tried by the military or the civilian justice system, and who may be detained indefinitely -- until the end of a war on terrorism that could never end. And, while other Western democracies have imposed legislative and judicial oversight on the preventive detention of terrorism suspects, the Bush administration -- arrogantly and inexplicably -- has refused to acknowledge any role for Congress or the courts.
If President Bush had had the humility to ask the Republican Congress for help, it would have immediately obliged by passing a comprehensive law of preventive detention. Instead, the administration chose to compound the dangers of preventive detention by making up its procedures on the fly, inventing new legal categories in order to avoid accountability to anyone outside the executive branch.
But, if the administration's actions have no clear precedent, neither do the threats the United States now faces. Justice Department lawyers argue, plausibly, that the United States needs to devise a system of preventive detention so it can mine the intelligence value of suspects without having to provide Miranda warnings and lawyers from the moment of arrest. And administration critics, such as former Attorney General Janet Reno, are wrong to suggest, in their Supreme Court briefs, that the president should be forced to resort to the ordinary criminal justice system to try all American citizens who have gone abroad to train with al Qaeda. In other words, we may indeed need a system of preventive detention, but we also need the legislative and judicial oversight that exists in other Western democracies.
Although President Bush's critics argue that he has demanded the power to pull any American citizen off the street and lock him or her up forever, the administration has defined enemy combatants more precisely, as those citizens who associate with al Qaeda abroad and then return to the United States "bent on hostile acts." This was the definition of enemy combatants endorsed by the Supreme Court in the Quirin case of 1942. The case involved German saboteurs who arrived by U-boat on the coasts of Long Island and Florida in the hope of blowing up train stations, bridges, and other infrastructure. "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 within the meaning of ... the law of war," said the Court. That definition was endorsed in an executive order issued weeks earlier by President Franklin D. Roosevelt, who wanted to try the saboteurs in secret military tribunals in order to impose the death penalty quickly, without revealing to German intelligence the vulnerabilities of U.S. coastal defenses. Justice Department lawyers were unsure whether the saboteurs should be treated as combatants or civilians -- only two were formally enrolled in the German army, although all wore German uniforms on landing to ensure that, if captured, they would be treated as prisoners of war.
There are obvious differences between the definition of enemy combatants the Supreme Court endorsed during World War II and the one the Bush administration is seeking to apply to citizens and aliens today. Although the World War II saboteurs buried their enemy uniforms, they admitted that they were acting on the direction of a nation against which the United States had formally declared war. But al Qaeda is not a nation, and neither Padilla nor Yaser Hamdi, who was caught on the battlefield in Afghanistan, have admitted that they are its agents. Furthermore, World War II had an unambiguous beginning and end, while the war against al Qaeda may go on forever. Most important, Roosevelt designated the saboteurs as unlawful combatants in order to try them in military commissions for violating the laws of war. The current enemy combatants, by contrast, may never be charged with anything and could be detained indefinitely, without the opportunity to contest their status or have their guilt decisively adjudicated.
The difference between the German saboteurs and the current combatants is most dramatically illustrated by the case of Ali Al Marri, a Qatari student who came to the United States on September 10, 2001, and enrolled in a master's program in computer-information systems at Bradley University. After people called the FBI to express concern about his activities, the FBI obtained a search warrant and allegedly found files in his computer listing more than 1,000 credit card numbers, as well as links to websites that provided advice about creating false credit cards and false IDs. The investigation also allegedly revealed that he had tried to call a number in the United Arab Emirates associated with one of the alleged financiers of the September 11 attacks, Mustafa Ahmed Al Hawsawi, whose number was also called by suspected lead September 11 hijacker Mohammed Atta.
Marri was indicted in 2002 and charged with the unauthorized possession of credit card numbers with intent to defraud. He was transferred to New York, and, while he was being detained, the Justice Department and the FBI say they learned from al Qaeda members in U.S. custody that Marri had met Osama bin Laden in Afghanistan and was a sleeper operative. Based on that intelligence, less than a month before Marri was to go to trial, the Bush administration transferred him out of the criminal justice system and designated him the third enemy combatant subjected to indefinite military detention and the first non-citizen enemy combatant caught in the United States.
The Marri case shows both the dangers and the potential benefits of the preventive-detention system the administration is trying to construct. Unlike the German saboteurs, he was not given a lawyer once he was deemed an enemy combatant: The administration has decided that lawyers may discourage combatants from talking to intelligence officers and has insisted on waiting to provide a lawyer until a suspect's intelligence value has been exhausted. (Padilla and Hamdi were not allowed to meet with lawyers until two years after they were seized.) Moreover, unlike the German saboteurs, Marri has not been charged with violating the laws of war and may never get the chance to contest his status as an enemy combatant. The reasons for detaining Marri (to interrogate him and to prevent him from committing sabotage) are very different from the reasons for detaining the saboteurs (to execute them as quickly as possible).
But it would be wrong to force the administration to try Marri, Padilla, and Hamdi in civilian courts, as Reno argues and as Justice Stephen Breyer tentatively suggested at the Supreme Court. The administration argues that, if Marri had been charged with a crime, he couldn't have been mined for continued intelligence: A lawyer would have told him to keep quiet. It's possible, as Justice John Paul Stevens suggested, that a lawyer might have had the opposite effect, encouraging him to cooperate, but the administration says it needs to create an atmosphere of intimidation and trust that would be disrupted by counsel. And prosecuting Marri for something more serious than credit card fraud might be difficult because of the administration's reluctance to reveal its sources and methods in court. During the World Trade Center bombing trial, for example, a pager number reportedly disclosed to the defense ended up in the hands of bin Laden, who promptly disabled it.
In other words, preventive detention may be necessary, but it can't take place without meaningful oversight from independent bodies outside the executive branch -- as other Western democracies have recognized. In Britain, after preventive detention of Irish Republican Army suspects led to wrongful convictions and mistaken identifications, Parliament passed a terrorism act in 2000 that forbids indefinite detention. Police can arrest suspected terrorists without a warrant but must charge or release them after 48 hours unless a court approves a maximum five-day extension. Detainees can respond to the allegations against them and must have access to counsel "as soon as is reasonably practicable." (The British lawyers are senior members of the bar, with security clearances, who can discuss classified information with the judge without necessarily divulging it to their clients.) The British Anti-Terrorism Act of 2001 allows the indefinite detention of foreign nationals who can neither be prosecuted nor deported. But they have the right to appeal their designation to the judiciary and the House of Lords, and Parliament must renew the detention authority every year. In Israel, the Knesset has mandated that detainees have access to counsel to contest their status and must be brought before a court within 48 hours to ensure there are public security reasons to approve the detentions. Although the minister of defense can renew each detention order every six months, courts must continue to review the basis for the detention every three months. In other words, both Britain and Israel recognize the importance of oversight by the legislative branch, as well as the courts.
The United States has never before approved a system of potentially indefinite detention of citizens where the executive alone decides when suspects can meet with lawyers, how long they remain dangerous, and when they should be released or tried. And Congress has repeatedly rejected the indefinite detention of citizens. On the two occasions when Congress authorized the president to detain citizens without trial -- in 1863 and 1950 -- it included procedural protections. (During the Civil War, Congress said detained citizens had to be indicted or released in states where the ordinary courts were open; and, during the McCarthy era, Congress said detainees had to appear before a hearing officer within 48 hours and be given the opportunity to cross-examine witnesses with counsel to make a case for their release.)
In repealing the McCarthy-era detention law in 1971, Congress prohibited the president from detaining citizens at all without congressional authorization. There's a dispute about whether the 1971 law applies to citizens seized outside the United States (such as Hamdi) or on the borders of the United States (such as Padilla). There's also a dispute about whether Congress's resolution authorizing the president to use "necessary and appropriate force" against al Qaeda also authorizes him to detain alleged al Qaeda operatives in the United States. But, in the Patriot Act, Congress specifically said aliens detained as terrorism suspects for more than seven days must be charged or deported in most circumstances; it seems unlikely Congress would authorize the indefinite detention of citizens but not of aliens.
What, then, should Congress and the courts do? The best solution would be for Congress to pass a comprehensive preventative-detention law that includes a series of safeguards, such as periodic review of each detainee's status and a hearing in which counsel can present evidence that someone has been wrongly identified without cutting off interrogations entirely. But Congress, determined to look tough on terrorism, has shown no interest in passing such a law unless the executive asks for one. And the Bush administration refuses to ask.
In the absence of congressional action, what should the Supreme Court do? There are three possibilities: The Court could uphold the Bush administration's actions; tinker with them by imposing procedural protections by judicial fiat; or strike down the preventative detentions as beyond what Congress authorized, thereby forcing the president to ask for broader congressional approval with full procedural protections.
It would be a mistake for the Court to uphold the current preventative-detention system without any judicial or congressional oversight: Unchecked executive detention is hard to reconcile with the Court's own precedents. Also, as the recent humiliation of Iraqis in the Abu Ghraib prison shows, the Bush administration can't be trusted to police itself: Paul Clement, the lawyer for the United States, stood before the Supreme Court and assured the justices that the United States has no interest in torturing prisoners at the same time that the Defense Department was investigating allegations of abuse. But the Court should also resist the temptation to tinker, creating elaborate oversight procedures by judicial decree, as Justice Anthony Kennedy seemed inclined to do during oral arguments when he hopefully asked Clement: "I'm taking away from the argument the impression ... that you think there is a continuing role for the courts to examine the reasonableness of the period of detention." ("I wouldn't take that away," Clement responded.) Similarly, Kennedy, who thinks every problem has a judicial solution, also wanted to know why lower courts couldn't demand "testimony as to how effective interrogations are and how long it takes" to win a suspect's trust without the interference of counsel, so that "we could begin to get some understanding of this process."
While some sort of judicial review of preventive detention would be useful, it should be authorized by Congress, rather than imposed by the Court: There are no clear constitutional standards for the Court to invent procedures on its own; and, by tinkering, the Court runs the risk of endorsing a detention system created without political accountability. Instead, the Court should strike down the executive's currently unregulated system of preventive detention as going beyond the "necessary and appropriate force" that Congress authorized after September 11. As Martinez argued, "Were this Court to rule that congressional action was required, I have no doubt that Congress would step into the breach very quickly to provide whatever authorization the executive branch deemed necessary."
When the Court, in the 1944 Korematsu case, upheld the internment of Japanese Americans, Justice Robert Jackson wrote a famous dissent that warned judges against the dangers of presuming to evaluate claims of military necessity. Instead of judging the reasonableness or unreasonableness of the army's judgments, Jackson said, courts should confine themselves to asking whether or not the executive has the authority to detain citizens in the first place. In the Korematsu case, Jackson said there was no such authority. In the Hamdi and Padilla cases, the Court's own precedents suggest that the president may have had the initial authority to detain citizens who have trained with the enemy and come to the country bent on hostile acts. But indefinite detention without access to counsel or the possibility of judicial review is something that neither the Court nor Congress has ever authorized in the past. By making clear that preventive detention is necessary -- but unacceptable without oversight from Congress and the courts -- the justices might finally convince the Bush administration that it needs to find the humility to ask for help as soon as possible.
Jeffrey Rosen is the legal affairs editor at TNR.
By Jeffrey Rosen