Checks and balances in wartime: American, British and Israeli experiences.

• Author: Schulhofer, Stephen J.

Three years after an attack that traumatized the nation and prompted massive military and law-enforcement counter-measures, we continue to wrestle with the central dilemma of the rule of law. Which is more to be feared--the danger of unchecked executive and military power, or the danger of terrorist attacks that only an unconstrained executive could prevent?

Posed in varying configurations, the question has already generated extensive litigation since September 11, 2001, and a dozen major appellate rulings. (1) Last Term's Supreme Court trilogy--Rasul v. Bush, (2) Hamdi v. Rumsfeld (3) and Rumsfeld v. Padilla (4)--clarified several important points but deferred decision on most of the significant issues. Ever cautious and understandably daunted, the Court avoided grappling in any final way with the underlying problem of reconciling the benefits and dangers of constraints on executive power. The problem, of course, is inherent in government itself. But in a national emergency it arises in less familiar settings, with much higher stakes and more difficult choices that will bedevil us, in changing forms, as long as the "war on terrorism" continues.

Beyond the legal specifics of last Term's trilogy (questions of jurisdiction, venue, the reach of prior holdings and the meaning of key statutory phrases), the cases presented a wide range of operational questions. Does the President, acting as Commander in Chief, have the right to hold suspected enemy fighters indefinitely, without providing them any sort of trial? Should he be able to block their access to lawyers, family and friends for lengthy periods, in order to facilitate effective interrogation? If hearings or trials are required, how promptly must they be held? Can the President choose to provide hearings, but only before military commissions subordinate to his authority? Can the public and even the defendants themselves be denied access to crucial but sensitive evidence that military or civilian judges will consider? If such Presidential powers exist, is Congress barred from limiting their exercise? Can Congress and the press be denied access to information about how the Presidential war powers are exercised?

The Court seemed to answer the first question in the negative, but the Administration continues to dispute this most elementary point. (5) And even if the Court did mean what it explicitly said--that some kind of hearing is required (6)--it left every one of the remaining questions wide open. To resolve them, of course, will require attention to many legal particulars. But all the questions pose a common normative problem--whether the need to protect public safety and national security in a time of crisis justifies restrictions on liberty that we would not impose under ordinary circumstances. Setting aside the appropriate, but ultimately unsatisfying debate over the true meaning of statutes and precedents, is there any way to resolve this foundational issue as a matter of first principles?

After September 11, 2001, many said that executive abuse was far less likely and less harmful than a devastating attack that unhampered executive officials could prevent. Others said, with equal confidence, that unchecked executive power is always too dangerous, and is inefficient to boot. It seems unlikely that either of these categorical answers could be correct. The dangers of an insufficiently constrained executive and the dangers of an overly constrained executive are both real. A central constitutional issue of our time will be to determine which is the more serious--and when.

America's past experience in wartime provides one relevant benchmark. But it cannot be decisive in itself. Fighting terrorism poses challenges that are essentially new (or newly recognized) for America. For that reason, it is worth considering the experience of Western democracies that confronted grave terrorist threats over extended periods before September 11, 2001. The focus of this Article, therefore, is an examination of the extent to which two of these nations, Britain and Israel, relaxed their own rule-of-law norms in order to battle terrorism effectively during periods of grave danger. It goes without saying that crisis situations abroad, such as the violence Britain faced in Northern Ireland, are not in all respects comparable to the terrorist threat America faces today. And the value judgments and compromises struck in other nations, even in comparable situations, are not necessarily right for the United States. But the British and Israeli situations, both extending over several decades, offer two of the few available sources of recent experience in attempting to reconcile the demands of national survival and the rule of law in the context of an unremitting terrorist threat.

Part I of this Article summarizes recent Administration assertions of executive detention power and the arguments advanced in support of them. Part II briefly outlines the history of executive detention in previous American wars and the often-overlooked pattern of judicial insistence on preserving rule-of-law norms. Part III examines British and Israeli efforts to reconcile those norms with a persistent terrorist threat.

The conclusions, summarized in Part IV, indicate that in both Britain and Israel, executive and military authorities claimed extraordinary powers and sought to dilute normal judicial checks. In both nations, such measures provoked controversy, and other branches reined them in to some extent. In these respects the foreign experience mirrors that of the United States over the past three years.

There is, however, a dramatic difference in the degree to which adjustments were made. In the current American "war on terrorism," the Administration has--with considerable support in the courts and even more in public opinion--held suspected terrorists incommunicado for several years, on nothing more than a unilateral Presidential determination of their involvement. The recent Supreme Court decisions, while refusing to condone unlimited Presidential power, set few clear boundaries. In one of the three cases (Harndi), the Court held only that after more than two years, there was no longer sufficient justification for continued incommunicado detention; it found no need to specify whether the rights to counsel and a hearing kick in at any earlier point. (7) In the other two cases, the Court left general principles even less specific. And despite encouraging rhetoric, the Court gave no immediate relief to any of the individual petitioners; their two-year-plus detentions were left undisturbed, and the government insists that even now, most of them have no right of access to counsel. (8)

The counter-terrorism adjustments sought and accepted in other countries differ by many large orders of magnitude. In Northern Ireland, beginning in the early 1970s, rival Catholic and Protestant militants resorted to increasingly lethal bombings and shootings in an effort to terrorize opposing communities; as Britain struggled to cope with a staggering death toll among security forces and civilians, ordinary time limits for bringing detainees to court, varying from twenty-four to thirty-six hours, were extended to seven days. Israel has for years confronted persistent suicide bombings and other terror attacks that its citizens consider a grave threat to national survival; in response, Israel raised its normal time limit prior to judicial review of detention from twenty-four hours to forty-eight hours for suspected terrorists seized within Israel itself, and to eighteen days for unlawful combatants captured in territories under military occupation. These measures, though modest (and arguably trivial) compared to those now imposed in the United States, were nonetheless perceived as draconian. Courts insisted that they be scaled back. In Israel, periods exceeding eight days for combatants seized in occupied territories were held to be an unacceptable impairment of the rule of law. In Britain, detention up to a maximum of seven days was allowed only with assurance that incommunicado conditions would end after forty-eight hours.

Access to counsel was likewise modified, but in ways that again seem almost trivial in comparison to American practice post-September 11th. In Britain, access to counsel in terrorism cases was restricted during the first forty-eight hours of detention, but restrictions were subject to judicial review, and there was (and is) an absolute, judicially enforceable right to consult a solicitor after the forty-eight hour point. In Israel, access to counsel (normally immediate) can be deferred in terrorism investigations for up to twenty-one days, but only with judicial approval and with some detainee access to family and other outside contact in the interim.

Beyond imposing these basic checks, courts abroad have addressed many of the difficult practical details that the U.S. Supreme Court has yet to confront. Both the British and Israeli terrorism crises required courts to decide how much allowance to make for the need--as part of effective intelligence gathering--for isolation and extended interrogation of terror suspects. In both situations courts assessed the procedural safeguards, structural independence, and limits on confidentiality appropriate in judicial review of detention decisions. They examined the safeguards necessary to prevent abuse of terror suspects in custody and the leeway warranted in light of legitimate national-security concerns. Israeli courts have considered the impact of logistics and administrative resources on the processing of enemy combatants seized in battle. Most fundamentally, both situations prompted extensive assessment of the nature of the judicial role and the appropriate mix of deference and scrutiny when courts face claims of military necessity in the context of the gravest threats to public safety and national survival.

On all these matters, detailed below...