Team Infidel
Forum Spin Doctor
Wall Street Journal
June 26, 2008
Pg. 10
By Jess Bravin
WASHINGTON -- At the Supreme Court, it has become a biennial ritual: The Bush administration loses a major war-powers case. In 2004, 2006 and again this month, the justices rejected the president's claim that he can effectively do as he wishes with prisoners he designates as "enemy combatants."
With the third and most-recent rebuke, it has become clear that the president's counterterrorism strategy rested on a critical legal miscalculation. In all these cases, the administration argued that a series of World War II-era opinions, largely forgotten before 9/11, empowered it to fight 21st century terrorist groups with the same sweeping authority Presidents Roosevelt and Truman asserted against the Axis Powers in the 1940s.
From the start, the Supreme Court rejected the administration's reading of the World War II cases, not in cursory fashion but in detailed lessons that distinguish the old precedents from today's very different situation.
The court's liberals and moderates have been the most skeptical toward Mr. Bush's claims. But even the conservatives have chided him. A 1948 decision, Hirota v. MacArthur, was a "slip of a case" that "cannot bear the weight the Government would place on it," sniffed Chief Justice John Roberts in a recent opinion.
"The bottom line is that the court is not buying off on this concept of the global 'war' on terror," says retired Col. David Crane, a law professor at Syracuse University and former war crimes prosecutor. "We don't have a situation with the Japanese imperial fleet coming into Los Angeles harbor, or the country dividing itself over slavery, or the British burning down the White House."
The Justice Department declined to comment. But an administration official familiar with the legal strategy said the government thought it was on solid ground, and noted that it prevailed in most of the lower courts. "With the respect to the executive branch, all we can do is look at the cases as they are in the books," this person said, but "the Supreme Court is free to evolve the law" as it sees fit.
Courts traditionally are reluctant to second-guess the president on national-security issues. But in two decisions handed down in June 2004, the court made clear that while prisoners captured overseas in battle zones or through counterterrorism operations may lack all the rights of a civilian defendant, they are at least entitled to have an independent hearing to challenge the government's accusations.
In Rasul v. Bush, the court found that the federal statute spelling out habeas corpus rights -- the legal procedure to contest unlawful detentions -- applied to Guantanamo Bay, where hundreds of prisoners were locked up. And in Hamdi v. Rumsfeld, the court ruled that a Louisiana-born Arab American captured in Afghanistan was entitled to a "meaningful opportunity" to contest his "detention before a neutral decision maker."
Mr. Bush's so-called war council -- a group of top lawyers who charted post-9/11 legal policy -- put its faith in the World War II cases. These people believed Johnson v. Eisentrager, a 1950 case concerning German prisoners of war convicted by a U.S. Army commission overseas, created a rule that noncitizens held abroad could never have their habeas petitions heard by U.S. courts.
The court disagreed. Then-Justice Sandra Day O'Connor suggested the majority's underlying concerns. Even "a state of war," she wrote in Hamdi, "is not a blank check for the President when it comes to the rights of the Nation's citizens."
Administration lawyers "were shocked when they lost," says Ronald Rotunda, a law professor at George Mason University who was then a special counsel to William J. Haynes II, the Defense Department's top lawyer and a member of the war council.
Guantanamo had been selected as a detention site in large part because the lawyers believed it would fall under the Eisentrager exception. Although formally within Cuba's "ultimate sovereignty," the U.S. had occupied the bay since the Spanish American War and could indefinitely exercise "complete jurisdiction and control" there through a lease obtained after ousting the Spaniards.
But in Rasul the court found that the habeas statute covered Guantanamo because it was de facto U.S. territory, since Washington had "plenary and exclusive jurisdiction" over it. Citing cases dating as far back as the 17th century, Justice Stevens wrote that the detainees' claims fell within "the historical reach of the writ of habeas corpus."
Current and former administration officials describe heated debates over the proper response, but say that remaining members of the war council -- particularly David Addington, now Vice President Cheney's chief of staff -- refused to budge from aggressive positions on executive power.
Instead of narrowing its claims, the administration treated the 2004 cases as technical rulings, creating pro forma military hearings to approve detention decisions and obtaining congressional legislation excluding Guantanamo from the habeas statute. In other areas -- notably the president's effort to create military commissions that operate outside established law -- the administration continued to assert that 1940s precedents gave the president a free hand.
The administration's plan to prosecute alleged foreign terrorists before military commissions was inspired by a 1942 episode when Roosevelt convened a secret tribunal to try eight German saboteurs arrested in the U.S. In a case known as Ex parte Quirin, the Supreme Court quickly approved the procedure, and six of the defendants were executed within days.
Administration lawyers viewed the 1942 precedent as a landmark of executive power, but even Antonin Scalia, the conservative justice, had doubts about Quirin, writing that "the case was not this Court's finest hour." The majority opinion found that Mr. Bush's attorneys had misread both Quirin and legal history.
In his majority opinion, Justice Stevens wrote that Quirin was no "sweeping mandate for the president to 'invoke military commissions when he deems them necessary,'" as the government argued, but rather affirmed that such tribunals could function if they operated in accord with the law of war.
The Quirin court, Justice Stevens observed, didn't simply approve President Roosevelt's action but examined "whether the law of war had indeed been complied with in that case." And while FDR's commission may have followed the law of war in 1942, subsequent developments -- the 1949 Geneva Conventions, the Uniform Code of Military Justice -- had vastly changed the landscape, he wrote.
Again, the White House response was to seek legislation that effectively overruled much of the court's decision. Congress obliged with the 2006 Military Commissions Act, providing a statutory basis for affording alien defendants fewer rights than U.S. service members would receive if prosecuted for the same crime, and quashing the dozens of habeas petitions Guantanamo prisoners had filed after the Rasul decision.
The Supreme Court has yet to consider whether the new military commission procedures are lawful. Earlier this month, when it ruled that constitutional habeas rights extend to Guantanamo, it chided the administration for misreading its precedents.
"Whether one agrees or disagrees with today's decision," wrote Justice David Souter in a concurring opinion, "it is no bolt out of the blue."
June 26, 2008
Pg. 10
By Jess Bravin
WASHINGTON -- At the Supreme Court, it has become a biennial ritual: The Bush administration loses a major war-powers case. In 2004, 2006 and again this month, the justices rejected the president's claim that he can effectively do as he wishes with prisoners he designates as "enemy combatants."
With the third and most-recent rebuke, it has become clear that the president's counterterrorism strategy rested on a critical legal miscalculation. In all these cases, the administration argued that a series of World War II-era opinions, largely forgotten before 9/11, empowered it to fight 21st century terrorist groups with the same sweeping authority Presidents Roosevelt and Truman asserted against the Axis Powers in the 1940s.
From the start, the Supreme Court rejected the administration's reading of the World War II cases, not in cursory fashion but in detailed lessons that distinguish the old precedents from today's very different situation.
The court's liberals and moderates have been the most skeptical toward Mr. Bush's claims. But even the conservatives have chided him. A 1948 decision, Hirota v. MacArthur, was a "slip of a case" that "cannot bear the weight the Government would place on it," sniffed Chief Justice John Roberts in a recent opinion.
"The bottom line is that the court is not buying off on this concept of the global 'war' on terror," says retired Col. David Crane, a law professor at Syracuse University and former war crimes prosecutor. "We don't have a situation with the Japanese imperial fleet coming into Los Angeles harbor, or the country dividing itself over slavery, or the British burning down the White House."
The Justice Department declined to comment. But an administration official familiar with the legal strategy said the government thought it was on solid ground, and noted that it prevailed in most of the lower courts. "With the respect to the executive branch, all we can do is look at the cases as they are in the books," this person said, but "the Supreme Court is free to evolve the law" as it sees fit.
Courts traditionally are reluctant to second-guess the president on national-security issues. But in two decisions handed down in June 2004, the court made clear that while prisoners captured overseas in battle zones or through counterterrorism operations may lack all the rights of a civilian defendant, they are at least entitled to have an independent hearing to challenge the government's accusations.
In Rasul v. Bush, the court found that the federal statute spelling out habeas corpus rights -- the legal procedure to contest unlawful detentions -- applied to Guantanamo Bay, where hundreds of prisoners were locked up. And in Hamdi v. Rumsfeld, the court ruled that a Louisiana-born Arab American captured in Afghanistan was entitled to a "meaningful opportunity" to contest his "detention before a neutral decision maker."
Mr. Bush's so-called war council -- a group of top lawyers who charted post-9/11 legal policy -- put its faith in the World War II cases. These people believed Johnson v. Eisentrager, a 1950 case concerning German prisoners of war convicted by a U.S. Army commission overseas, created a rule that noncitizens held abroad could never have their habeas petitions heard by U.S. courts.
The court disagreed. Then-Justice Sandra Day O'Connor suggested the majority's underlying concerns. Even "a state of war," she wrote in Hamdi, "is not a blank check for the President when it comes to the rights of the Nation's citizens."
Administration lawyers "were shocked when they lost," says Ronald Rotunda, a law professor at George Mason University who was then a special counsel to William J. Haynes II, the Defense Department's top lawyer and a member of the war council.
Guantanamo had been selected as a detention site in large part because the lawyers believed it would fall under the Eisentrager exception. Although formally within Cuba's "ultimate sovereignty," the U.S. had occupied the bay since the Spanish American War and could indefinitely exercise "complete jurisdiction and control" there through a lease obtained after ousting the Spaniards.
But in Rasul the court found that the habeas statute covered Guantanamo because it was de facto U.S. territory, since Washington had "plenary and exclusive jurisdiction" over it. Citing cases dating as far back as the 17th century, Justice Stevens wrote that the detainees' claims fell within "the historical reach of the writ of habeas corpus."
Current and former administration officials describe heated debates over the proper response, but say that remaining members of the war council -- particularly David Addington, now Vice President Cheney's chief of staff -- refused to budge from aggressive positions on executive power.
Instead of narrowing its claims, the administration treated the 2004 cases as technical rulings, creating pro forma military hearings to approve detention decisions and obtaining congressional legislation excluding Guantanamo from the habeas statute. In other areas -- notably the president's effort to create military commissions that operate outside established law -- the administration continued to assert that 1940s precedents gave the president a free hand.
The administration's plan to prosecute alleged foreign terrorists before military commissions was inspired by a 1942 episode when Roosevelt convened a secret tribunal to try eight German saboteurs arrested in the U.S. In a case known as Ex parte Quirin, the Supreme Court quickly approved the procedure, and six of the defendants were executed within days.
Administration lawyers viewed the 1942 precedent as a landmark of executive power, but even Antonin Scalia, the conservative justice, had doubts about Quirin, writing that "the case was not this Court's finest hour." The majority opinion found that Mr. Bush's attorneys had misread both Quirin and legal history.
In his majority opinion, Justice Stevens wrote that Quirin was no "sweeping mandate for the president to 'invoke military commissions when he deems them necessary,'" as the government argued, but rather affirmed that such tribunals could function if they operated in accord with the law of war.
The Quirin court, Justice Stevens observed, didn't simply approve President Roosevelt's action but examined "whether the law of war had indeed been complied with in that case." And while FDR's commission may have followed the law of war in 1942, subsequent developments -- the 1949 Geneva Conventions, the Uniform Code of Military Justice -- had vastly changed the landscape, he wrote.
Again, the White House response was to seek legislation that effectively overruled much of the court's decision. Congress obliged with the 2006 Military Commissions Act, providing a statutory basis for affording alien defendants fewer rights than U.S. service members would receive if prosecuted for the same crime, and quashing the dozens of habeas petitions Guantanamo prisoners had filed after the Rasul decision.
The Supreme Court has yet to consider whether the new military commission procedures are lawful. Earlier this month, when it ruled that constitutional habeas rights extend to Guantanamo, it chided the administration for misreading its precedents.
"Whether one agrees or disagrees with today's decision," wrote Justice David Souter in a concurring opinion, "it is no bolt out of the blue."