In December, the Bush administration suffered two legal setbacks in the war on terror. An opinion of the U.S. Court of Appeals for the Second Circuit challenged the government's claim that it has the right to detain terror suspect Jose Padilla (the "dirty bomber") without giving him access to the courts or charging him with a crime. Separately, the Ninth Circuit ruled that the nebulous legal status of some 600 Taliban and al Qaeda fighters captured in Afghanistan and detained at Guantanamo Bay, Cuba, must be open to judicial scrutiny. In both decisions the issue was whether, as the Ninth Circuit put it, "the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included...without permitting prisoners recourse of any kind to any judicial forum." The Supreme Court is already slated to consider this question in relation to Guantanamo (as presented in an earlier appeal from the D.C. Circuit), and it is widely expected to review the question as it pertains to U.S. citizens as well.
Though the Padilla and Guantanamo cases are different, both exhibit the uncomfortable mix of military and law enforcement considerations characteristic of the war on terror. Neither is adequately met by our existing criminal law or the law of war. The cases are also linked by the fact that Padilla and the Guantanamo detainees share the ill-defined designation "enemy combatants" (although Padilla is a U.S. citizen held on U.S. soil, while the Guantanamo detainees are foreigners held at a U.S. naval base abroad). More than two years into an unprecedented and open-ended campaign against terrorism, it appears that we still lack the legal framework necessary to effectively process those we are compelled to apprehend.
Civil libertarians at home and abroad have been raising a clamor about this for some time. Faced with their criticism, the government has not responded effectively. It has neither mounted a vigorous rebuttal, nor laid to rest citizens' legitimate concerns, instead leaving the issues to be resolved by the courts. At best, the administration's strategy is defensive and guaranteed to fuel endless controversy.
At first glance, the explanation for this state of affairs might seem to be that offered by some of the critics themselves: that the Bush administration fits the standard pattern of government in time of war, bending to the demands of crisis and favoring security at the expense of liberty.
The truth is different. Morally intimidated and bullied by civil libertarian ideologues, partisan opportunists, and a press almost universally hostile on these issues — yet having accepted, along with the rest of the country, the lessons of Korematsu, the Red Scare, and the due process revolution of the 1960s — administration officials seem, not surprisingly, to prefer to evade the debate or retreat behind the rhetoric of "security." The administration has failed to make its case well or to take modest actions that could strengthen its case. This in turn encourages the critics and deepens the government's reluctance to touch a set of issues on which it feels it can only lose.
The time has come for the government to break this poisonous cycle. Balancing liberty and security in a way that is plain and understandable to all is a tough job, but it must be attempted. The centerpiece of a Bush administration civil liberties offensive should be creative institutional reform. A new terrorism court is the place to start.
Ordinary criminal courts are not designed for trying terrorism suspects. As a practical matter, they do not routinely provide the kind of security for witnesses, judges, and jurors that is required where terrorist attack and reprisal are a concern. More important, they cannot meet the need for secrecy that may arise from the use of sensitive testimony derived from confidential sources. Normal due process rights, including the right of defendants to confront witnesses against them, must be managed very carefully lest they undermine anti-terrorism efforts. Similarly, where potential defendants are apprehended on foreign battlefields, some standard Fourth, Fifth, and Sixth Amendment rights (having to do with search warrants, Miranda warnings, the right to have an attorney present while being questioned) and other rules pertaining to evidence (the exclusionary rule, the prohibition of hearsay evidence) are clearly out of place.
The government must undertake a systematic sorting out of these and other similar legal issues. Too often, its response to the new challenges has seemed haphazard and inconsistent. U.S. citizen John Walker Lindh, captured in Afghanistan, was allowed to plead guilty to criminal charges with a lawyer at his side in a federal court, while citizen Yaser Hamdi, captured in similar circumstances, sits in a Navy brig with no sign of any day in court, whether civilian or military. Even more striking, while non-citizen Zacarias Moussaoui (the "twentieth hijacker" arrested in Minnesota before 9/11) has succeeded in turning his federal criminal trial into a three-ring due-process circus, citizen Padilla (arrested, like Moussaoui, on U.S. soil) shares the hapless fate of Hamdi.
In a parallel development, the irregular legal status of the prisoners at Guantanamo Bay arises from our inability to apply ordinary rules — in this case the rules of war — to the special requirements of fighting terrorism. The "prisoner of war" designation is denied al Qaeda and Taliban fighters captured in Afghanistan, partly because they did not meet the usual requirements for that status of fighting in uniform and operating within the regular military structure of a recognized country. But their terrorism affiliation also changes the interest our government takes in them. There is a good case to be made for asking members of a clandestine terrorist organization to divulge more than their name, rank, and serial number — all that may be asked of POWs. There is a need to detain such individuals as long as they are fairly deemed to pose a security risk (analogous to the situation of POWs) — but in the new context of a conflict without a clear beginning and whose end is likely to be just as murky (by contrast with POWs).
As a result of such difficulties, the government has designated citizen detainees Hamdi and Padilla on the one hand and the non-citizens at Guantanamo on the other as "enemy combatants." But this term, originating in Ex parte Quirin, a 1942 Supreme Court decision upholding the use of military tribunals to try Nazi saboteurs captured on U.S. soil, is not defined in that opinion, in statements by the administration, or in recent court rulings. Nor does it figure in U.S. statutes. Equally troubling, the term is ambiguous in its relation to the traditional and essentially unquestioned distinction in international law between lawful and unlawful combatants. One knows what to do with individuals in these two categories: hold the former in POW camps, and try the latter before some sort of war crimes tribunal. The enemy combatant designation, while it fills a legitimate need in the current context, exists in a legal limbo where no court, civil or military, has clear jurisdiction, and thus opens the door to valid concern about due process.
Institutional reforms are needed to resolve these questions and signal clearly to Americans and a watching world that due process, even for terror suspects, matters to our government. Extraordinary measures presented as matters of executive authority, or justified in the name of security, have been tolerable during a period of adaptation to the new era, but they will fail in the long run. Leaving it to the Supreme Court to force the government to act, meanwhile, is a poor substitute for a forward-looking and forthright effort to face our unprecedented situation squarely and in a way consistent with the principles of the U.S. Constitution.
To deal with terrorism cases that could be handled under the ordinary criminal law (as were, for example, the 1993 World Trade Center bombing, the Oklahoma City federal building bombing, and the case of Zacarias Moussaoui), Congress should create a new specialized court. This terrorism court would incorporate special security measures, protect the secrecy of sensitive information and sources, and make provision in its evidentiary rules for the peculiar situations arising from operations on a battlefield or its equivalent. Terror suspects should know the charges against them, have access to attorneys (specially trained, with the proper security clearances), and enjoy a right of appeal. To ensure independence from executive branch influence, federal judges with lifetime appointments should fill the bench. A terrorism court would provide a framework for the emergence of a body of precedent and the development of a cadre of specially trained expert judges and lawyers. There is some precedent for a roughly similar arrangement in the U.S. Foreign Intelligence Surveillance Court, created in 1978 and expanded under the Patriot Act. Experience in European countries (especially France, Germany, and Great Britain) in processing terrorism suspects in civilian courts also provides useful points of reference.
A few legal thinkers have already advocated institutional reform along these lines. Its main supporters are to be found on the left. Roger Williams University law professor Harvey Rishikof (legal counsel at the FBI during the Clinton administration) has written a helpful, detailed, and thoroughly researched law review essay on the subject. And New York University law professor Burt Neuborne (onetime national legal director of the ACLU) floated the idea on the New York Times editorial page two years ago. Among conservatives, federal appeals court judge Michael Chertoff and law professors Viet Dinh of Georgetown and John Yoo of Berkeley have all begun hinting that some sort of "architectural" reform might be desirable. Their opinions count, because until recently all three worked in key positions at the Department of Justice and helped to fashion the Bush administration's legal response to the war on terror in the period immediately following the attacks of September 11.
Is there an equivalent reform available in the case of the Guantanamo detainees? One possibility would be to pursue a suggestion from Morton Halperin, most recently director of the policy planning staff at the State Department under Clinton and a leading figure at the ACLU. He has called for giving those detained at Guantanamo some sort of structure or process within which to ensure that they are not being held arbitrarily, but were indeed involved in armed conflict against the United States. Such a procedure ordinarily extends to POWs and was followed in both wars in Iraq. It typically requires review by less than a full-blown military tribunal. It was not used in Afghanistan because irregular forces raised novel issues.
Something along the lines Halperin suggests would serve to reassure ourselves and our allies that we do not take lightly our obligations to basic norms of due process, even in wartime. To be sure, as Defense Department legal counsel William Haynes has pointed out, Guantanamo detainees have been the subject of "a rigorous review of the facts under which they were captured and detained, as well as an interrogation process, a threat assessment process, a psychological analysis, a check of background information, a check of law enforcement authorities." But if an extensive review is already happening, why not formalize it and make clear to the world that careful procedures are being followed and, we believe, must be followed? This is another issue that Congress should consider clarifying by statute. As for how long the detainees will be held and what the process is for determining their fate, these matters too deserve to be clarified.
Over and above the important legal details to be sorted out, several general principles should guide the effort. First, rules governing the detention of terrorism suspects, whether citizens or non-citizens, must be explicit, public, and comprehensible. This means above all setting out the meaning of "enemy combatant" and the justification for this special status. What are the criteria by which an individual may be determined to be an enemy combatant? Who (preferably outside the executive branch) is authorized to review challenges to the use of this designation? What rights (as a detainee, as an accused) does an enemy combatant have?
Second, in designing the new architecture, the executive should not act alone. There are obvious roles for the other branches of government to play here. Congress, in the full light of day, should grant the president the requisite authority to act in this legally unprecedented situation. And it must create new institutions to make the administration of policy more rational and equitable. Where use of civilian courts would not interfere with legitimate security operations, they should be given a role as a review authority here.
Third, the great civil libertarian principle of Ex parte Milligan — the famous Civil War case that retroactively condemned Lincoln's excessive use of military tribunals in the North — should stand: Civilian courts should be preferred wherever possible.
In particular, there is no reason why special civilian tribunals could not deal with every issue raised by the detainees at Guantanamo, including individuals charged with war crimes. Granted, military tribunals are of unquestionable constitutional legitimacy, and military justice has proven itself in the past. Yet in the wake of the due process revolution, it is appropriate to insist upon the supremacy of the civilian judicial authority and the importance in a liberal democracy of deferring to it wherever possible. The standard justifications for using military tribunals — battlefield pressures, and the inaccessibility of civilian judges — do not apply to Guantanamo. Indeed, the Bush administration has recently taken a step toward enhanced civilian oversight, naming four civilians to serve as the reviewing authority for any decisions to be made by military tribunals at Guantanamo (though the four are being commissioned as major generals in the Army for the duration of their two-year terms). Why not take this a step further and mark off a new general precedent for minimizing the role of military tribunals in wartime? This could be a distinctive civil liberties legacy of the Bush administration, and one in which we lose nothing from the perspective of security.
A proactive effort to sort out these matters through broad institutional reform, undertaken before the government's hand is forced by the courts, could become the centerpiece of a Bush administration civil liberties offensive. To the extent that the administration has gained a reputation (however unjust) for slighting liberty in the name of security, it should want to set the record straight. The American people cannot be expected simply to give the government the benefit of the doubt forever, agreeing that seemingly extralegal measures are justified. Bold, institutional innovations, built to last, could send a clear message that this government reveres our heritage of due process and deference to law. By contrast, in the absence of such reforms, one may well ask: What will this government do to reassure the American people that even in the midst of the war on terror it is vigilant in upholding their liberties? Leaving aside every other consideration, in a nation dedicated to limited government, this is not an idle question.
To move in this direction is clearly in the interest of the Bush administration. Democratic party politicians have proven themselves addicted to mischaracterizing the government's civil liberties record, and they have been successful in what amounts to a broad and irresponsible campaign of slander. If undertaken properly, the creation of a terrorism court and newly transparent procedures at Guantanamo would recast the debate and go a long way to neutralize such criticism.
It's true that recently, ex-Department of Justice officials Chertoff, Dinh, and Yoo have broached the question of reform in public, even as they have defended the administration's actions thus far as reasonable responses to unforeseen challenges. But on the left and in the press their efforts have been presented as "jumping ship," and as amounting to simple criticism of their former boss, Attorney General John Ashcroft. The need for the administration to sort out these questions directly and boldly is plainer than ever.
We may expect that the president's critics and partisan opponents will seize on any effort to improve and clarify the enemy combatant situation as one more excuse to attack the president. Indeed, there is a danger that a new terrorism court would itself be denounced as an authoritarian excess.
One way to avoid such an outcome is to fashion a process for proposing and enacting institutional reform that would attract significant bipartisan support. One possibility is to name a presidential commission comprising sensible experts from both left and right and give it the task of drafting a preliminary proposal to be sent to Congress for hearings, debate, and enactment into law. Some radical civil libertarians are impossible to satisfy, but if the process were properly managed, their voices would carry little moral authority.
Open, robust, and if necessary prolonged debate of the issues is not to be feared. On the contrary, it would only serve to aid the administration's cause. A bipartisan effort would deny civil libertarian critics the luxury of taking potshots from the sidelines if it forced them to engage with the hard choices the administration has thus far had to face alone.
There are enough reasonable people of good will on both sides of these issues that an effort to address civil liberties concerns would not be wasted. FBI director Robert Mueller received a standing ovation from the ACLU (along with real criticism, to be sure) when he spoke at their national convention. Democratic senators Joe Biden and Dianne Feinstein have made a courageous defense of the Patriot Act, another recent sign that all is not lost on these issues to partisan sniping. Discussing a new court for terrorism suspects could help reframe the American civil liberties debate in a responsible and positive way.
Seizing the initiative would provide the Bush administration with a fresh outlet for its own frustrated commitment to civil liberties, and allow it to emerge from the hailstorm of criticism that has left it paralyzed. Besides, it would seem that George W. Bush — who has staked his presidency on meeting the terrorist threat — ought do no less than equip the country with the permanent institutions and procedures it will need to complete the task.
Thomas F. Powers teaches constitutional law at the University of Minnesota Duluth.
By Thomas F. Powers