Understanding Enemy Combatant Status and the Military Commissions Act, Part I. Enemy Combatant Status: No More Pernicious Doctrine
Apologists for the Court point out that Bush did not get all that he wanted. That is true. Bush wanted absolute and plenary power to designate anyone, citizen or not, an “enemy combatant” and do as he pleased with them – detaining, interrogating, even torturing and executing them if he saw fit - with no judicial interference at all. Instead, the Court insisted that there be some manner of a deferential administrative hearing before Bush got to do as he wished. That is the only difference of any substance.
Rather than insisting that Hamdi, a U.S. citizen, receive all of the protections of the accused which are his due under the Bill of Rights, the Court breathed new life and legitimacy into this destructive doctrine that had lain around unused and nearly forgotten, like a dusty, but still dangerous “loaded weapon,” since the World War II Ex Parte Quirin decision (1942). The Hamdi Court, citing Quirin, stated unequivocally that “[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” According to the majority on the Court, the mere labeling of a person as an “enemy combatant” removes the shield of the Bill of Rights and replaces it with a new judge-created system of minimal administrative process to “challenge” that designation.
Under this system, the accused will have none of the procedural protections of our Bill of Rights: No Grand Jury indictment; no trial by jury with its requirement of a unanimous verdict of twelve of one’s peers; no possibility of an unreviewable acquittal and immunity from further prosecution; and no protection against compelled self incrimination. The presumption of innocence is gone, as is the requirement of a showing of guilt beyond a reasonable doubt. Instead, the government will enjoy a presumption that its allegations are accurate. The accused will have the burden of proving his innocence, but will have no right to compulsory process of witnesses and no right to confront the secret evidence and witnesses against him.
At most, according to the Hamdi majority, “a citizen held in the United States as an enemy combatant [will] be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker” and access to counsel to assist (as best they can) in that hearing. The Court made clear that the definition of “a meaningful opportunity” will have to be fleshed out by subsequent courts, and a military tribunal may qualify as a “neutral decision maker” for that minimal, administrative hearing to determine status. And this is touted as a victory.
However, Lincoln did not just treat the citizens and soldiers of the rebel states as the enemy. During the Civil War, more than 13, 535 Northern civilians were arrested by the military and at least 4,271 of these were tried before military tribunals, with some of them being executed. Typical charges were vague accusations of violating the laws and customs of war. In one such case, a man was found guilty of violations of the laws of war for letting rebels lurk in his neighborhood without reporting them. Others were accused of harboring rebels or engaging in guerilla warfare. This treatment of northern civilians as the enemy is what the Milligan Court ruled unconstitutional after the war.
What the Milligan Court upheld is the Constitution’s separation of civilian and military jurisdiction. The Founders, and the people who ratified the Constitution, were very concerned about overreaching military power. In fact, prior to the Revolution, the colonists had even been upset about British soldiers being tried by tribunals, rather than civilian juries, for offenses committed off duty. The colonists considered such tribunals a violation of the rights of Englishmen. The Founders knew the sad English history of the abuse of special military and executive courts, such as the infamous Star Chamber, during England’s many upheavals and coups and endeavored to prevent their recurrence.
The unconstitutionality of such military jurisdiction is made all the clearer when we consider the Fifth Amendment’s exception to the requirement of Grand Jury indictment for those in the military or in the militia during actual service. What was the point of that exception if the President retains a power to deny the protections of the Fifth Amendment to any citizen, in the military or not? If the President has such an implied power over civilians and the Fifth Amendment did not impair it, then surely he retained an implied power to use military jurisdiction over his own troops, thus making the exception clause superfluous. Apparently the Founders considered the clause necessary to preserve military jurisdiction over soldiers because the Fifth Amendment would otherwise have wiped out the power. Why would the writers of the Fifth Amendment not also feel compelled to carve out such a power over citizens who are the enemy if they meant military jurisdiction to apply to them? They had no such intention, having already provided for trial for treason in Article III. It is absurd to assert that the American people, who had only recently thrown off a tyrannical government, understood the Constitution and Bill of Rights to give presidents the power to set aside their hard won liberties with a stroke of a pen. Even the claim that such a power was given to Congress is historic revisionism at its very worst.
Now, with the current Court’s blessing, “enemy combatant” status is a perpetual executive detention and military trial power, always in effect in this perpetual “war” against terrorism, even when we are not being invaded. No lower court in the land can strike these detentions down as violations of the Bill of Rights since the Supreme Court has decreed that the Bill of Rights no longer applies. Rather than a detainee being temporarily denied access to courts which are chomping at the bit to protect his liberty with the still intact shield of the Bill of Rights, he will be processed through courts which have themselves joined his tormenters as part of the machine of detention, military trial, and execution by applying some mere administrative standard which is below and outside the Bill of Rights. Thus, judges have been drafted to serve the executive branch by giving this “process” the gloss of constitutionality.
With the current Court’s assistance, the Milligan decision has been turned upside down, precisely as if the government had prevailed in that case when it asserted that the amendments in the Bill of Rights are “peacetime provisions only …are silent amidst arms, and when the safety of the people becomes the supreme law... [and b]y the Constitution, as originally adopted, no limitations were put upon the war-making and war-conducting powers of Congress and the President.” The Bill of Rights, as any real barrier to government power in time of war, has been effectively written out of the Constitution. We are left with only “political” checks on the scope of this "war" power. How is it that, after the Milligan Court so emphatically stamped out this pernicious weed, it survived to once again assault our liberties?
Unfortunately, critics of the internment tend to focus on its racial discrimination and inequality without seeing that these Americans were being treated just as if they were the occupied enemy civilian population of Japan, just as Milligan had been treated like the enemy. In fact, supporters of the internment justified the imposition of military rule over these citizens on the grounds that the necessities of modern warfare made obsolete the Milligan decision’s requirement that there first be an actual invasion such that the courts were closed before the military could have temporary jurisdiction over civilians. It should be no surprise that the Bush Administration does not cite to the internment decisions though they are certainly “on point.’ Instead it cites to another World War II case by the same Court -Ex Parte Quirin (1942), which asserts the same principle but has not been repudiated by public scorn.
Quirin was a one-time, expedient decision to justify the predetermined actions of FDR, a very powerful wartime president, who made it very clear that he was not going to turn the eight German saboteurs over to civilian courts. Whatever the Court decided, FDR intended to convict these men before his own hand-picked military tribunal and execute them. In fact, by the time the Court wrote its decision, months after oral argument, the saboteurs were already dead.
This wildly misreads the Milligan decision. Mr. Milligan had been accused of plotting to kidnap the governor of Indiana, break into an Army armory and steal weapons, set Southern POWs free, and then spark an insurrection in Indiana so the South could invade. The government expressly accused him of violating the laws of war. The Milligan decision did not just invalidate some narrow use of military jurisdiction for certain acts, it categorically denied the use of any such jurisdiction for any offense whatsoever for persons who did not fit into the categories of U.S. soldiers or the enemy.
While the Milligan decision is concerned with categories of people, Quirin focuses on the actions of the accused. The Quirin decision strives to minimize and narrowly define what actions are covered by the Bill of Rights, moving from clause to clause as it attempts to show that each did not apply to acts in violation of the laws of war, when the real focus should have been on whether the person in question belonged in the category of the enemy or of a member of the armed forces.
In fact, the Quirin Court did not even have to address the issue of citizenship at all. At the time, the Nationality Act of 1940 stipulated that any citizen serving in a foreign army without permission had automatically lost his citizenship. So, according to that statute, Haupt, the saboteur who claimed citizenship, was not even a citizen. The government was prepared to argue just that point, and the Court could easily have ruled on the narrow grounds that Haupt’s citizenship claim was void, making him just like the other German soldiers, subject to military trial. But the Court went ahead and ruled on the issue of citizenship when it did not need to. Why did it do this?
Recall that this was 1942, the very darkest hours of World War II, and the Court had to know about the mass internment of the Japanese-Americans. The Court also had to know that Hawaii was then under martial law, and U.S. citizens there were being tried by military tribunal for even petty crimes. In addition, FDR had issued a very broad tribunal order (even broader than the one Bush has issued) that called for the use of military tribunals on any persons who acted on behalf of an enemy nation, and this would include citizens and legal resident civilians, not just enemy soldiers and foreign spies. Thus, the Quirin Court wrote a sweeping decision that left the President as much flexibility and freedom to act as he might require in the uncertain years ahead.
[O]nce a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle … [which] then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.
As it turned out, it was Quirin, not Korematsu, which has lain about like a loaded weapon for sixty years before finally being picked up by another willful wartime President who is now expanding it to new purposes. While the Quirin decision involved eight admitted German soldiers in a declared war, the resurrected doctrine is now being expanded exponentially in a vague, perpetual “war” against terrorism, which is a technique of conflict rather than an identifiable enemy, to apply to anyone on the planet the president cares to simply accuse of being a “terrorist” or supporting terrorists. The Hamdi Court, by its uncritical acceptance of a flawed decision that should have been as discredited as Korematsu, has now multiplied that wartime error by making this modern, wildly expanded version the doctrine of the Constitution and thus the supreme law of the land.
Most of those who oppose Bush’s particular articulation of this doctrine have not been willing to directly attack Quirin or its affirmation in Hamdi. Indeed, even the opposition briefs submitted to the Supreme Court in the Hamdi and Padilla cases merely argued that the President must first get the permission of Congress before stripping citizens of their protections under the Bill of Rights and that, at most, a detainee was entitled to counsel and some measure of a hearing to determine their status as an enemy combatant.
Thus, even the supposed defenders of our rights accepted Quirin as good law and hence agree that the Bill of Rights is at the level of a mere statute since it can be effectively circumvented by a Congressional authorization granting the President the authority to treat U.S. citizens like foreign enemies, while making the courts complicit in its violation.
Of course, a plurality of the Hamdi Court did them one better by finding that Congress had already given authorization to detain citizens simply by passing its 2001 Authorization for Use of Military Force. As asked, the Hamdi Court ruled that such detainees could have a lawyer and a “meaningful determination” of status, but nothing else in the Bill of Rights. And still, the vast majority of the pundits, the professors, and the human rights organizations claimed victory. Our freedom will not survive another “victory” like this one. The next time the government "captures" a U.S. citizen here and designates that citizen an "enemy combatant" just as Jose Padilla was “captured” at O’Hare International Airport, the Court may find such a detention perfectly constitutional, especially now that Congress has given its stamp of approval with the Military Commissions Act and its extremely broad definition of who may be such an enemy combatant (to include citizens, of course). Such a decision may just be the other boot that will drop, finally smashing down to drive us into George Orwell’s infamous vision of the future as a “boot stamping on a human face --for ever."
We must not, in the interest of equality for all humankind, rip down our Constitution’s wall of separation between civilian and military rule and apply to ourselves the same military jurisdiction and low level of administrative process our government can give foreign enemies under our constitutional design. If we do so, we will hand over to the war mongers and empire builders our last weapon of liberty, the one shining gift America has given to this world: our Bill of Rights. Without it, we will be powerless to stop our own government as it - finally free to act without even a pretext to our consent- unleashes its raw, unrestrained power on the whole world. Who better to put a stop to it than us, and how will we do so if we give up our tools of peaceful revolution, our Bill of Rights?
The fate of liberty is in our hands. We must either be warriors who stand and fight to bring the world back from the brink of a universal tyranny, or, surrendering our Bill of Rights, bow down as impotent slaves who can only join the other victims at the edge of the ditch. I know not what course others may take, but as for me …