Above the law

The Bush administration is arguing that it has the right to lock up U.S. citizens forever -- without evidence, witnesses, lawyers or trials. If the Supreme Court agrees, will this still be America?

Published April 28, 2004 9:14PM (EDT)

U.S. Supreme Court justices listened skeptically last week as Solicitor General Ted Olson argued that foreign detainees being held in U.S. military facilities in Guantánamo Bay have no right to seek relief from U.S. courts. Wednesday, Olson will be back before the court, this time arguing in two historic cases that the government has the authority to lock up U.S. citizens, too -- without charges, without a lawyer, without a trial, without any rights at all -- simply by declaring them "enemy combatants" in the administration's war on terror.

Having government agents sweep U.S. citizens off the streets and into prison cells, holding them incommunicado for as long as the government likes -- it sounds like a dark fantasy of life in a totalitarian state, the kind of thing we're supposed to be fighting against in Iraq. But this is no fantasy. In the cases of Jose Padilla and Yaser Hamdi, the Bush administration is advancing a vision of governmental power that is both far-reaching and unprecedented, at least in the United States of America. And it is a vision -- like the one the administration articulated Tuesday during Supreme Court arguments on the secrecy of Vice President Cheney's energy task force -- that leaves sole discretion, sole authority, and almost unfettered power in the hands of the executive branch.

It's easy to become blasé about liberties lost in the Ashcroft era. The lines between foreign intelligence efforts and criminal investigations have been blurred; the government has more power to snoop, to search, to study your financial transactions and examine your reading habits; foreigners have been detained, immigrants deported. "There are so many things," says Elliot Mincberg, legal director for the liberal advocacy group People for the American Way.

But the administration's arguments in the Padilla and Hamdi cases have activists and analysts on both the left and the right alarmed all over again. Timothy Lynch, director of the conservative Cato Institute's Project on Criminal Justice, says the Bush administration is advancing a "sweeping theory of executive power" that could lead to "dangerous" legal precedents. "If the administration were to prevail in Hamdi and Padilla, there would be no limit to the number of people who could be arrested here totally outside the normal criminal process, people arrested without arrest warrants, people not going before judges, people being held in solitary confinement in prison facilities right here in the United States," he said.

The Cato Institute and People for the American Way seldom see eye to eye, but they do here. If the Supreme Court accepts the Bush administration's arguments in the Padilla and Hamdi cases, Mincberg says, the executive branch of the U.S. government will have "an unlimited right to put American citizens in an indefinite Constitution-free zone."

Jose Padilla and Yaser Hamdi are already there. For two years, the two men -- both U.S. citizens -- have been imprisoned in U.S. Naval brigs in Virginia and South Carolina. They have not been charged with any crime. They have not been allowed meaningful access to counsel. They have not been allowed to see their families.

Padilla was arrested on May 8, 2002, at Chicago's O'Hare Airport. Attorney General John Ashcroft announced that Padilla had been involved in an "unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb." But Ashcroft's Justice Department didn't charge Padilla with any crime. Instead, he was held in custody in New York under the federal "material witness" statute, a law that allows the government to detain individuals who might otherwise flee before testifying in criminal cases. As an inmate in the criminal justice system, Padilla was afforded the rights the Constitution guarantees. He was appointed a lawyer, and he was allowed to meet with her in private.

But when a federal judge in another case held that the government could detain "material witnesses" only for trials -- not for investigations, as the government was holding Padilla -- the Bush administration apparently grew nervous that its inmate might go free. Two days before Padilla's lawyer was to argue that he must be released, the government abruptly transferred Padilla out of the criminal justice system and into the hands of the Department of Defense. Padilla was moved from a jail cell in New York to a Navy brig in South Carolina. By the time he arrived, his rights were gone.

Yaser Hamdi was never given such rights to begin with. Like Padilla, Hamdi is a U.S. citizen. But unlike Padilla, he was taken into custody outside the United States and never became part of the criminal justice system. According to the government, Hamdi "surrendered" to Northern Alliance forces while those forces were fighting the Taliban near Konduz, Afghanistan, in late 2001. As government officials note at every opportunity, Hamdi allegedly carried an AK-47 at the time of his "surrender."

The Northern Alliance turned Hamdi over to U.S. troops. The Department of Defense subsequently transferred Hamdi to Guantánamo Bay, then to the U.S. Naval Brig in Norfolk, Va., and then to the U.S. Naval Consolidated Brig in Charleston, S.C. All told, Hamdi has been in U.S. custody for nearly two and a half years. During that time, he has been allowed a single visit by a representative of the International Red Cross and what his lawyers call "the infrequent exchange of censored letters with his family." He was allowed to meet with lawyers only once -- on Feb. 3, 2004, more than two years after he was taken into custody, and even then with government monitors listening in.

In briefs filed with the Supreme Court, the Bush administration makes the circular argument that "enemy combatants" like Hamdi and Padilla aren't entitled to counsel because the government hasn't charged them with any crime. Moreover, while Padilla apparently met with counsel without dire consequences early on in his case, the administration now says that providing "enemy combatants" the right to meet with lawyers would create unacceptable risks. Maybe they would use their lawyers as conduits for messages to al-Qaida. Or maybe allowing them access to lawyers would disrupt the feelings of desperation that might otherwise make them believe that they need to cooperate with their interrogators if they ever want their freedom.

In the criminal justice world, that's one of the benefits of ensuring that defendants do have counsel -- access to counsel ensures that defendants know they have rights, that they do not have to incriminate themselves, that they are not dependent entirely on the favor of their jailers. But in the cases of Jose Padilla and Yaser Hamdi, these anti-coercive principles have been turned upside down.

In an extraordinary document the government has filed in Hamdi's case, the acting commander of the U.S. military facilities at Guantánamo Bay says that military interrogators are working to instill in their subjects feelings of "dependency and trust" that will compel them to volunteer damning information. U.S. Army Col. Donald Woolfolk explains in his declaration: "Disruption of the interrogation environment, such as through access to a detainee by counsel, undermines this interrogation dynamic."

But the central question in the Padilla and Hamdi cases isn't whether they have the right to counsel; it's whether the government has the right to hold them at all in the legal never-never land it has created.

For the Bush White House, that power is self-evident. In briefs filed with the Supreme Court, Solicitor General Olson -- whose wife, conservative commentator Barbara Olson, was killed on 9/11 -- argues that the president's constitutional authority as commander in chief grants him the "inherent" power to hold even U.S. citizens as enemy combatants. "It is well-settled that the President's war powers include the authority to capture and detain enemy combatants in wartime, at least for the duration of the conflict," Olson argues in the Hamdi case.

Deborah Pearlstein of Human Rights First (formerly the Lawyers Committee for Human Rights) says the government could clearly bring criminal charges against Padilla if it wished to do so. That might be more difficult with Hamdi because he was captured abroad, although the government did use the criminal justice system to prosecute John Walker Lindh, another U.S. citizen captured in Afghanistan. But even if the government could not prosecute Hamdi criminally, it could hold him as a prisoner of war.

But if the government were to hold Padilla or Hamdi as prisoners of war or criminal defendants, it would have to provide them the rights such a status would require. The Geneva Convention provides protections for POWs. The U.S. Constitution protects criminal defendants. The government may fear that bringing criminal charges against Padilla would require it to make captured al-Qaida members available as witnesses in court, thereby limiting their future usefulness as informants in the war on terror. Or the government may simply fear that it lacks the facts to win a conviction against Padilla in a criminal case, with its "beyond a reasonable doubt" standard of proof. By declaring Padilla and Hamdi "enemy combatants" the government has created a category of detainee for which it can claim there is no instantly applicable set of legal rules.

"The term 'enemy combatant' doesn't appear in any of the controlling bodies of law we have, doesn't appear in the U.S. Constitution, doesn't appear in any applicable statute or the Geneva Convention," Pearlstein said. "As soon as you say 'enemy combatant,' you need to explain what you mean because there's no generally accepted definition."

As Pearlstein acknowledges, the term "enemy combatant" does appear in the 1942 U.S. Supreme Court case of Ex Parte Quirin, but the court mentions the term there only in passing. It offers no definition, and it does not describe the legal protections to which enemy combatants are -- or are not -- entitled. Moreover, Quirin was decided long before Congress adopted a statute prohibiting the imprisonment or detainment of any U.S. citizen except pursuant to an Act of Congress.

Nonetheless, the Bush administration relies heavily on the Quirin decision in the Padilla and Hamdi cases, arguing that it provides solid legal precedent for the administration's detention of citizens whom the president deems enemy combatants -- a term the administration defines as encompassing any individual who "was part of or supporting forces hostile to the United States or coalition partners, and engaged in armed conflict against the United States."

Thus far, the courts are divided on the propriety of the administration's actions. In Padilla's case, the U.S. Court of Appeals for the 2nd Circuit held that the government may not hold a citizen indefinitely simply by declaring him an enemy combatant. In Hamdi's case, the U.S. Court of Appeals for the 4th Circuit reached the opposite conclusion. The 4th Circuit is widely considered the most conservative of the federal appellate courts; Cato's Lynch suspects that the administration chose to detain Padilla and Hamdi in Virginia and then South Carolina precisely because those states are within the jurisdiction of the 4th Circuit, where the administration likely thought it would get the most sympathetic hearing. But even the 4th Circuit has rejected some of the most aggressive variations on the administration's detention justifications.

In the briefs it has filed in the Supreme Court, the administration argues that the president's authority -- either as commander in chief or under Congress's authorization to use military force in response to the Sept. 11 attacks -- includes the authority to decide who is and who isn't an enemy combatant, with virtually no oversight or scrutiny by anyone outside the executive branch.

While Olson says that a court may be entitled to hear the president's "articulated basis" for designating someone an "enemy combatant, the court can consider only whether what the president says about the citizen satisfies the criteria for "enemy combatant" status. The detained citizen has no right to challenge the president's version of events, and the courts have no power to consider such a challenge anyway.

"All they have to do is come up with a statement that, in some very broad terms, explains what [the detainee] has done," says Mincberg, of People for the American Way. "They might have gotten the wrong guy. Maybe it was my cousin or somebody that looks like me. When I was 12 years old, there was a kid that looked like me and I got blamed for a lot of things he did. But according to the administration, there wouldn't be any right to contest the determination the president has made."

Cara Thanassi, a legislative advisor for the international aid group CARE, said the unilateral nature of the detention designations is particularly dangerous for those who work in organizations like hers. "It would expose aid workers in combat zones to the possibility of being indefinitely detained without any opportunity to have their detention reviewed by a competent tribunal," she said in a press conference in Washington last week. Thanassi said that she is concerned not just that her colleagues might be detained by the United States, but that U.S. policies denying detainees the right to judicial review could be used as precedent -- or payback -- by other countries as well.

In the criminal justice system, procedural safeguards protect the wrongly accused. Even in a minor criminal case that carries the risk of only a short prison sentence, a defendant has the right to challenge the evidence against him, to confront and cross-examine witnesses. But in the cases of Hamdi and Padilla, the government has relied solely on the two-page designations signed by George W. Bush and on brief declarations by Michael Mobbs, a "special advisor" to an undersecretary of defense. In the Padilla case, the Mobbs declaration alleges that Padilla met with and received training from al-Qaida members and "was sent to the United States to conduct reconnaissance and/or other attacks on their behalf." But the allegations rely extensively on third-hand reports of what confidential informants allegedly said, and sometimes not even that. At one point, the Mobbs declaration says only that "it is believed" that al-Qaida members directed Padilla to conduct reconnaissance or attacks in the United States. Believed by whom, special advisor Mobbs does not say.

Because neither Bush nor Mobbs has any firsthand knowledge about Padilla or Hamdi, the actions in which they were allegedly engaged or the circumstances of their capture or detention, their statements about those subject matters are hearsay. In a criminal case, they would be inadmissible as evidence. But in the Hamdi and Padilla cases, these hearsay statements alone provide the sole basis for detention of U.S. citizens -- and indefinite detention at that.

In the government's briefs, Olson dismisses the notion that Hamdi and Padilla might be held "indefinitely." But as the administration concedes, in the war on terror -- a war with no single enemy, a war where there is no one whose "surrender" might signify a clear end to hostilities -- it is impossible to know what event might trigger the end of detention. As with the reason for holding Hamdi and Padilla in the first place, the administration advances a "trust us" argument on the length of their detentions. Olson writes: "The military has made clear that it has no intention of holding captured enemy combatants any longer than necessary in light of the interests of national security ..."

During oral arguments last week in a case concerning the rights of noncitizen detainees held at Guantánamo Bay, the justices' questions of counsel suggested that there may be little tolerance on the court -- at least among the four liberal-leaning judges and Republicans Anthony Kennedy and Sandra Day O'Connor -- for leaving so much discretion in the hands of the administration. Mincberg was at the court for the argument last week, and he said he left feeling cautiously optimistic that a majority would push back against the administration's positions on noncitizens and citizens alike. "I'm hopeful that the court will not uphold this kind of unilateral power," he said.

Cato's Lynch is also hopeful, but worried. "It's an entirely new realm of law that is being tested here," he said. "We have constitutional protections pertaining to searches and arrests, pertaining to lawyers and imprisonment. If all of that is put away in a box that says, 'That's only for criminal matters involving civilian authorities, and these things don't apply to the Department of Defense,' then the implications are enormous with respect to liberty for Americans and the way in which that liberty is guaranteed."

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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