June 14, 2011 | Weekly Standard

Due Process for Jihadists?

The Supreme Court ponders the constitutional rights of enemy combatants.

“Isn't the main issue,” Justice John Paul Stevens plaintively asked, “the fact that it has taken six years” to resolve the question whether alien enemy combatants “have been unlawfully detained” at Guantánamo Bay?

For the Supreme Court hearing arguments last week in Boumediene v. Bush, that should not even be a relevant issue. (Lakmar Boumediene is an Algerian who emigrated to Bosnia in the 1990s. He was arrested for plotting to attack the U.S. embassy in Sarajevo and turned over to the U.S military.) If it is lawful to imprison captured enemy operatives without trial until the end of hostilities, as it has been for centuries under the laws of war, then it should not matter how long they've been held. Thus did Solicitor General Paul Clement gamely counter that emphasizing the six-year delay serves only to “cloud the basic constitutional question before this Court.”

Yet, for most of the morning it was difficult to remember what that issue was. Not for want of skilled lawyering; Clement and his adversary, former (Clinton administration) Solicitor General Seth Waxman, gifted advocates, were at the top of their very considerable games. No, the problem is that the basic question is too bracing: Does the Constitution of the United States afford any due process for alien jihadists even as they conduct a terror war against Americans?

Waxman is far too clever to claim that the Framers somehow designed a Constitution which entitles enemies of the American people to use the courts of the American people as a weapon of their war against the American people: that the judiciary is not a governmental component of a nation at war but rather an impartial supra-tribunal whose only allegiance is to “the law.” So the combatants' side resisted couching their claim as an entitlement of the enemy.

We were instead serenaded with a song of our constitutional commitment to that holiest of rhetorical holies, the rule of law. Even in the midst of hostilities, Waxman maintained, there can be no “law-free zones.” Not at Gitmo, and not, as Chief Justice John Roberts's piercing questions teased out of Waxman's euphonious sound-bite, in any place on the globe where the United States fights war and takes prisoners. To the contrary, there must always and everywhere be a judicial process for reviewing military detention: a process that is both meaningful and, Waxman stressed, swift–deftly pouncing on Justice Stevens's “main issue.”

Even if one agreed, for argument's sake, that there should be such a process, however swift, that would not necessarily mean it needed to be a constitutional process. Congress has designed an adequate statutory procedure for testing the fundamental fairness of detention, so there should be no need to confront the more vexing issue of whether the Constitution imposes any limits on the harshness with which government may treat the enemy during hostilities. This, not surprisingly, was the tack that Clement took. Having had all manner of Constitution-shredding calumny laid at its feet since 9/11, the administration clearly preferred to gear its oral argument toward how much, in reality, has been done for the combatants. How much, in theory, could be done to them is better left for the brief to explain.

The solicitor general had a very good case. Let's leave aside that in Johnson v. Eisentrager (1950) the Supreme Court flatly held that the Constitution does not vest foreign enemies with the right to habeas corpus–i.e., to challenge their military detention before the civilian courts. Let's instead compare what Congress has wrought (with the 2005 Detainee Treatment Act and the 2006 Military Commissions Act) and “the base line” of 1789, when the Constitution enshrined habeas rights for Americans.

Clement recounted that in the late 18th century, alien combatants faced three insuperable hurdles in front of the courthouse door: (a) the jurisdiction of the federal courts did not extend outside U.S. territory; (b) the judicial writ was simply unavailable to belligerents because taking prisoners of war was deemed a political act of the sovereign, not a legal question for the courts; and (c) judges were required by separation-of-powers principles to accept the executive branch's determination of combatant status.

Now, by contrast, combatants are given systematic judicial reviews in the civilian courts despite being held in a location, Guantánamo Bay, that the political branches have reaffirmed is not part of sovereign U.S. territory. That civilian review comes after a combatant status review tribunal modeled on Army regulations for the treatment of honorable combatants (not terrorists)–except to the extent the tribunal is more solicitous of the welfare of Gitmo detainees, affording them rights to a personal representative and an unclassified summary of the factual basis for detention. In a close case, the executive is entitled to the benefit of the doubt, but the court may invalidate combatant status if it is not supported by a preponderance of the evidence. That, moreover, is in addition to its review of the military's fidelity to its own tribunal regulations and of whether those regulations pass muster under the Constitution and other federal law.

The permissible scope of this review provided the day's most intriguing exchanges. Court watchers widely assume that the conservative and liberal blocs are split four on each side, and that Justice Anthony Kennedy's vote will be decisive, as it was when the justices held, in the 2004 Rasul case, that combatants had statutory habeas rights–rights Congress subsequently narrowed. In the course of Clement's argument, Justice Stephen Breyer adduced the solicitor general's admission that, broad as it may be, the judicial review prescribed by the Detainee Treatment Act does not permit combatants to lodge every conceivable claim against their detention; they are limited to challenging the validity of the combatant status tribunal procedures. So, Justice David Souter surmised, that must mean they are foreclosed from arguing that the concept of “unlawful enemy combatant,” the gravamen of any detention finding, is too broad? No, Clement responded, they most certainly can “raise a constitutional claim that the definition is broader than constitutionally could be enforced.” Kennedy, pleasantly surprised, interjected: He had not realized, during the solicitor general's joust with Breyer, that Clement had made this concession.

It is a weighty point. In the Military Commissions Act, Congress defined unlawful enemy combatant expansively. The term includes not only al Qaeda, the Taliban, and “any international terrorist organization, or associated forces” engaged in hostilities against the United States and its allies, but also any person the executive determines has “supported” those hostilities. While obviously justifiable in cases where support involves a knowing, material contribution to jihadist warfare, this definition could potentially stretch indefinite detention in a worrisome way–especially for judges wedded to traditional notions of “combatant” and “battlefield” that terrorist savagery has rendered passé. Clement, however, was emphatic: The D.C. Circuit “absolutely” has jurisdiction to consider whether Congress has too loosely defined the enemy.

Whether that will satisfy Kennedy remains to be seen. Plainly, six years have changed a lot of perspectives, even though that doesn't (or, at least, shouldn't) change the Constitution. Getting down to originalist basics, Justice Antonin Scalia pressed Waxman, “Do you have a single case in the 220 years of our country or, for that matter in the 500–the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?” The issue might have been that simple on September 11, 2001. It no longer is.

Andrew C. McCarthy runs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies, which filed an amicus brief supporting the government in Boumediene v. Bush

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