Norman K. Swazo[1]

“The worst of precedents may be established from the best of motives. We ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which an hundred innocent persons may suffer.”

--Chief Judge C. J. Cranch, United States v. Bollman, 1807

In the April 2003 issue of The Ethical Spectacle I engaged the problem of U.S. military detention of alleged enemy combatants at Guantanamo Bay in Cuba. In that paper I argued that the decision rendered by the United States Court of Appeals for the District of Columbia in the case of Al Odah et. al v. United States ought not to stand insofar as it denied that Guantanamo detainees have “the privilege of litigation” in U.S. courts. This decision had the consequence of denying to the detainees the legal right of requiring writs of habeus corpus by which they could legally challenge their detention.

Petitioners have achieved a minor victory by having the U.S. Supreme Court issue its order in the case on 10 November 2003, to wit:

“The petitions for writs of certiorari are granted limited to the following Question: Whether the United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay Naval Base, Cuba. The cases are consolidated and a total of one hour is allotted for argument.” (U.S. Supreme Court, Order List, No. 03-343, Al Odah, Fawzi K., et. al. v. United States, et. al)

As James Vicini of Reuters news network observed, this is “the first time the justices will rule on the Bush Administration’s anti-terrorism policy.”

There was plenty of support for a Supreme Court review, evident in the various amici briefs: from the Center for Constitutional Rights, retired military officers, the Commonwealth Lawyers Association, former American POWs, former members of the US diplomatic service, Fred Korematsu, former federal judges, and the Human Rights Institute of the International Bar Association.

At issue for all supporting the petitioners is the credibility of U.S. constitutional law per se that guarantees fundamental civil liberties, as well as the credibility of constitutional law in its relation to international law. Here I wish to focus on arguments offered in the amicus brief submitted by former federal judges. This brief in particular may point to the position the U.S. Supreme Court is likely to take on the question at issue.[2]

The judges write in support of petitioners for certiorari, claiming “the Executive has advanced, and the lower courts have accepted, a core position that threatens the role of the judiciary in safeguarding the rule of law in our national government.” Their argument holds:

The decisions of the lower courts in the cases at issue are “contrary to the rule of law;”
“The writ of habeas corpus provides petitioners with judicial review of executive branch detentions;”
“Providing petitioners due process will not interfere with legitimate military interests;”
“No policy or precedent warrants denying basic due process rights to citizens of friendly nations imprisoned by and in a territory under the exclusive jurisdiction and control of the United States;”
“The Court of Appeals’ decision extends Johnson [v. Eisentrager] beyond its proper holding and fails to reconcile conflicting opinions affording rights to nonresident aliens in territories outside the ‘ultimate sovereignty’ of the United States;”
“The Court should accept certiorari to uphold the judiciary’s power to review the unilateral actions of the executive branch and to recognize the flexible application of the due process clause.”[3]

I. The Amicus Argument in Brief

In their summary of the argument, the judges claim that the position taken by the United States government is “misguided” inasmuch as indefinite detention and incarceration of the Guantanamo Bay prisoners occurs by Executive decision “without adequate process.” In short, the judges argue, “While the process due will vary with the circumstances, in no event may the Government claim the unfettered power to imprison people indefinitely—that is, unless that power is checked by affording the prisoners the correlative right to the rule of law.” The judges here take issue with the U.S. Government’s position in two cases: (1) in Hamdi v. Rumsfeld, in which Government lawyers argue “that the judiciary must accept, conclusively and uncritically, the justification advanced by the Executive for the indefinite detention of a U.S. citizen;” and, (2) in Al Odah, in which Government lawyers hold that “the judiciary may not even inquire as to justifications, since the courthouse door is forever closed to foreign nationals who have not set foot within the ‘ultimate sovereignty’ of the United States.”

The basic argument unfolds with a view to the proposition that the rule of law must be controlling “in times of crisis as well as peace,” so that Executive branch concerns about national security, legitimate military interests, etc., ought not diminish due process, especially when the Courts are faced with petitions for habeus corpus. Notwithstanding these legitimate concerns, the rule of law imposes “both ‘procedural and substantive’ limitations on government power,” certainly on that of the Executive even when the president acts as commander-in-chief of the U.S. military.[4] The U.S. government cannot legitimately “act to deprive individuals of liberty without legal authority.” To do so is to violate the rule of law both procedurally and substantially. Accordingly, both the Executive and the Judiciary are responsible for protecting individual liberties even in times of crisis such as the present in which the “global war on terrorism” is being prosecuted by the United States.

In short, the judges properly emphasize the rule of law as a condition sine qua non for the essence of constitutional government, their point being that the United States government has authority in law and not in men.

Having distinguished effectively the rule of law from the rule of men, the former essential to governance in the United States, the judges turn to the significance of the writ of habeas corpus: It is “a fundamental right critical to ensuring access to the rule of law.”[5] So fundamental is this right, the judges argue, that “It is undisputed that the writ applies to persons who have been detained pursuant to the orders of the Executive Branch.” This is precisely the point at issue given the Bush Administration’s insistence that presidential prerogative to act as commander-in-chief forecloses judicial review. Citing Article I, § 9, Clause 2, of the U.S. Constitution, the judges point out the limits of “suspension” of the writ, provided to “the legislature” rather than to the executive branch. The detention of prisoners at Guantanamo does not meet the test conditions for suspension in any case—“cases of Rebellion or Invasion.”

In any dispute between the executive and the judiciary, the executive will insist on its prerogatives where national security interests are at issue. The executive is concerned that suspected Al Qaida prisoners at Guantanamo would by some means compromise national security interests if they are permitted judicial process. However, as the judges point out, “combat does not eviscerate the Constitution.” Here the judges properly challenge the President’s appeal to his constitutional function as commander-in-chief of the military while conceding proper deference to the executive in matters of national defense. Citing Youngstown Sheet & Tube Co. v. Sawyer [343 U.S. 579, 645-46 (1952)], the judges remind that no President “can escape control of executive powers by law through assuming his military role.”[6] Citing Parisi v. Davidson [405 U.S. 34, 49 (1972)], the judges observe further that the writ of habeas corpus functions, inter alia, “to keep the military within bounds.” Linking the constitutional question to international law, the judges cite Justice Story in Brown v. United States, [12 U.S. (8 Cranch) 110, 153 (1814)] who, conceding a certain “discretion” vested in the Executive, nonetheless pointed out that the President “cannot lawfully transcend the rules of warfare established among civilized nations.”

The point is well taken even as it is disputed by President Bush’s approach to the global war on terror. Conflating federal criminal law, military law, and the international law of war, the Bush Administration continues to play quick and loose with the very concept of a “war” on terror. Precisely because agents operating transnationally are engaged in this “war on terror” and specific nation-states are not the objects of hostilities, principals in the debate such as Defense Secretary Rumsfeld and his deputy Wolfowitz see the matter in terms of pragmatic—rather than normative—criteria. For them, politics is less a domain of international morality and law than it is a matter of power politics in which interest and circumstances are determining for policy. However the Bush Administration construes the global war on terror, the position taken by the judges make it clear that Ex parte Quirin [317 U.S. 1 (1942)] held that the Court “has recognized and applied the law of war as including that part of the law of nations which prescribes …the status, rights and duties of the enemy…individuals.”

Turning to the issue of sovereignty at Guantanamo—perhaps the key legal issue that led to the lower court ruling against privilege of litigation in U.S. courts—the judges challenge the decision in Al Odah. Accounting for the history of judicial review, the judges call attention to the fact that “no compelling policy or precedent exists for such a holding.”[7] The “ultimate sovereignty” test imposed by the Appeals Court is, simply, “artificial,” the judges argue, given that “the United States has all ‘the basic attributes of full territorial sovereignty’” at Guantanamo. Citing various precedents, the judges point to “a long line of decisions” in which courts “have afforded the protection of fundamental constitutional rights to residents, aliens and citizens of similar territories, where the United States exercises control and jurisdiction but does not have ultimate sovereignty.”

Finally, the judges challenge the unilateralist emphasis of the Bush Administration insofar as it undermines the power of the judiciary to review. Judicial review properly undertaken would account for “flexible application of the due process clause” as well as identify alternative practices the Executive may pursue even in “circumstances of war,” e.g., “treat detainees as prisoners of war,” or “prosecute them under procedures specifically designed to safeguard national security…[where] access to confidential information” is limited. Judicial review, in short, opens up avenues for the effective rule of law precisely in the case in which the Executive would foreclose completely compliance with either constitutional or international law.

II. Prospective Compliance

We can appreciate that judges long practiced at the federal level have provided such an amicus argument challenging the Bush Administration’s appeal to executive privilege in the interest of national security. The various point of argument make it clear that the United States cannot ignore either its fundamental legal tradition or its obligations under the law of nations. When principals of the Bush Administration—such as deputy defense secretary Paul Wolfowitz and associated neoconservative internationalists—hold beliefs about international relations contrary to the rule of law and manifestly implement these ideas in U.S. policy, it is time for the judiciary to take notice and provide remedy.

Consider Wolfowitz’s doctrine on statesmanship. Wolfowitz grants that “principle is a powerful force in politics and particularly democratic politics.”[8] He sanctions strengthening “international norms in favor of democracy and human rights.” But, Wolfowitz is also enough of a pragmatist that he insists on adequacy of response to “the practical necessities of power relationships” in international affairs. Accordingly, he argues, “foreign policy decisions cannot be subject to the kind of ‘rule of law’ that we want for our domestic political process.”[9] The problem with this approach to statesmanship is that it moves in the direction of claims of U.S. exceptionalism to the declaratory tradition in international law and to a readiness to abrogate both bilateral and multilateral treaties according to the changing dictates of national security policy. While arguing for a democratic future in which liberal democracies have a shared moral vision, Wolfowitz nevertheless champions the cause of democracy with the sort of “realism” that readily invokes sovereign prerogative. Here sovereign prerogative turns out to be reserved to the authority of the President as commander-in-chief, so that the goal of U.S. military preeminence entails global hegemony—i.e., the establishment of a Pax Americana.

This approach to international affairs denies place to that avowedly normative approach to international affairs according to which both international morality and international law (customary and positive) provide the frame of reference for state conduct and the appropriate means of constraint and restraint—even upon the United States. It is precisely this doctrine of statesmanship that is being manifest in the Bush Administration’s unilateralism in foreign affairs as well as in the relation between the Executive on the one hand and Congress and the federal judiciary on the other. Al Odah and associated petitioners act rightly to challenge this general tendency precisely at a time that the relation between constitutional law and international law is being tested by the global war on terror. If the judges amicus arguments are telling, we have hope that the U.S. Supreme Court will recover the function of the judiciary to check and balance the Executive, restraining its excesses in both foreign and national security policy. Absent the Court’s ruling in favor of the petitioners, the protection of civil liberty in the United States suffers from the rule of men rather than the rule of law.