Creating legal rights for suspected terrorists: is the court being courageous or politically pragmatic?

• Author: Pushaw, Robert J., Jr.

Boumediene v. Bush (1) continued the Supreme Court's quixotic quest to establish legal guidelines for the War on Terrorism, which George Bush waged--with the support of Congress--after al Qaeda's attacks of September 11, 2001. (2) A majority of Justices began their battle against the political branches five years ago in a pair of cases.

First, Hamdi v. Rumsfeld (3) invalidated the government's indefinite detention of "enemy combatants" (i.e., those who had engaged in armed conflict against the United States) who were American citizens. (4) The Court ruled that they had due process rights to notice and a hearing before an impartial decisionmaker, which might include a military tribunal. (5)

Second, Rasul v. Bush (6) concerned the President's decision to imprison alien enemy combatants in Guantanamo Bay, Cuba, which he had made in reliance upon entrenched precedent construing the federal habeas corpus statute as not extending jurisdiction to foreigners captured and confined abroad. (7) The Court creatively reinterpreted this statute to allow the Guantanamo detainees to file habeas petitions and purported to distinguish its previous contrary cases. (8)

In consultation with the executive branch, Congress swiftly responded by clarifying that its habeas law did not give any federal court jurisdiction over aliens incarcerated at Guantanamo (thereby overturning Rasul) and by establishing instead for these prisoners a multilayered process of military justice followed by federal judicial review. (9) Seeming to defy Congress, five Justices in Hamdan v. Rumsfeld (10) held that it had not repealed the Court's appellate jurisdiction over cases involving foreign enemy combatants or authorized their trial by military commissions. (11) Once again, Congress quickly made crystal clear that it had indeed intended to (1) deprive all federal courts (including the Supreme Court) of jurisdiction over habeas petitions from such detainees, and (2) empower the President to try them by military tribunals. (12)

Undaunted, the same five Justices who had formed the Hamdan majority recently reached the unprecedented conclusion in Boumediene v. Bush that the Constitution's writ of habeas corpus may be invoked by noncitizen enemy combatants who have been apprehended and detained outside of the United States' sovereign territory. (13) Accordingly, the Court struck down Congress's procedures for such detainees as a suspension of the constitutional habeas writ and as inadequate to protect due process rights. (14)

Legal scholars and pundits, who almost uniformly loathe George Bush and thus applauded the Hamdi, Rasul, and Hamdan decisions, praised the Boumediene Court for its "courage" in upholding individual liberties and the "rule of law" (15) against the assertedly unparalleled misconduct of the Bush administration, which had suffered another stunning "rebuke" that would force it to make significant policy changes. (16) Such claims seem implausible, for several reasons.

For one thing, the current Justices in general are not particularly bold or hell-bent on expansively protecting individual rights, especially as compared to their predecessors on the Warren and early Burger Courts. The Rehnquist and Roberts Courts have shown far greater restraint by: (1) cutting their annual docket in half; (2) frequently deciding cases on the narrowest possible grounds, thereby leaving many legal questions open and amenable to further democratic deliberation; and (3) refraining from creating far-reaching constitutional rights. (17) The "enemy combatant" cases depart from this cautious approach.

Moreover, the Court hardly promotes the rule of law by disingenuously "interpreting" statutes to mean the opposite of what they plainly say (as in Rasul and Hamdan), inventing new constitutional doctrines (as in Boumediene), and ignoring or distorting its precedent (as in all three cases). On the contrary, the rule of law presupposes that judges will impartially apply the written legal rules contained in the Constitution, statutes, and cases. (18)

Finally, the Court's repeated stern reprimands of President Bush and Congress had little real-world impact on their antiterrorism policies, which were not nearly as offensive as measures taken during previous wars. (19) Although the President and Congress always expressed respect for the Court, they did not implement the radical changes it likely hoped to spur.

In short, I am skeptical of the conventional wisdom that a uniquely brave Supreme Court, motivated by its steadfast commitment to the rule of law, successfully foiled the military policies of a singularly evil President and his legislative henchmen. Rather, I believe that five pragmatic Justices, animated by their personal and political disagreements with the Bush administration, capitalized on the relatively rare opportunity to give a legal lecture to a politically unpopular (but not especially bellicose) President and Congress at a time when a national security crisis had safely passed. I predict that when the next emergency arises (such as another terrorist attack), the Court will accede to whatever military retaliation the President deems appropriate--and will cite as support the precedent that it was careful to distinguish rather than overrule.

I base the foregoing conclusions on recurrent historical patterns, which reveal a flexible and politically sensitive approach to reviewing cases involving military affairs. (20) The Court has never entertained general claims that the formulation or implementation of military policy exceeded the powers of Congress under Article I or the President under Article II. More specific complaints that the exercise of war powers violated someone's individual legal rights have been judicially reviewed, but with far more deference to the government than in the domestic sphere.

The degree of deference, however, has depended upon the factual, legal, and political context of each case. The Court's discretion has been guided primarily by four interrelated factors: (1) the seriousness of the military crisis and the necessity for the President's responsive action; (2) whether or not Congress approved the President's conduct; (3) the egregiousness of the alleged violation of individual rights; and (4) the President's political strength, which if high enough might lead him to ignore a court order to desist from an action he has determined is essential to win a war whose outcome hangs in the balance. This last consideration is never publicly articulated but nonetheless can be crucial.

Application of these factors has always led the Court to decline to challenge politically powerful Presidents like Abraham Lincoln and Franklin Roosevelt who, with Congress's backing, addressed perilous national security threats--regardless of the individual rights at stake. (21) Even in less dire circumstances, however, the Justices usually have deferred to the President's judgment. (22) The Court has struck down war measures only in a few cases when a very unpopular President, such as Andrew Johnson or Harry Truman, unilaterally took a step that the Court found to be disproportionately drastic, invasive of fundamental legal rights, and unnecessary because the military crisis had ended. (23)

I predict that Boumediene and the other "enemy combatant" decisions will eventually be grouped in this latter category. The Court decided these cases when President Bush's approval ratings had hit historic lows, long after the September 11 emergency had passed and therefore Bush's continuation of his initial hard-line approach struck the majority as unnecessary--and inimical to basic liberty interests. (24) The only traditional factor for judicial intervention that has not been consistently present is the lack of congressional approval. On the one hand, the majority justified the Rasul and Hamdan holdings largely on their conclusion that Congress had not authorized President Bush's action. (25) On the other hand, in Hamdi and Boumediene the Court acknowledged such legislative authorization, yet struck down the President's actions as unconstitutional--a result that had never occurred before. (26)

One possible explanation for the novelty of Hamdi and Boumediene is that the Court found itself in a historically unique situation which allowed it to defy both political branches with relative impunity, for two reasons. (27) First, by 2008 the approval rating of Congress had dropped to twelve percent, even lower than George Bush's twenty-six percent. (28) Second, the Justices who decided Boumediene knew that there would be a new President elected five months later, and both candidates had pledged to make major changes in detainee policy (including possibly shutting down Guantanamo). Thus, the lame-duck President Bush could not effectively retaliate against the Court, especially given voters' overriding concern with the sinking economy. (29) Under these unusual circumstances, it would be a mistake to characterize the recent "enemy combatant" cases as heralding a permanent shift to fearless, aggressive judicial oversight of military decisions.

The foregoing ideas will be developed in three parts. Part I will summarize the Court's pragmatic, case-by-case approach to judicial review of war powers. Part II will analyze the Court's recent War on Terrorism decisions, with a special emphasis on Boumediene. Part III will suggest that these cases eventually will be seen as aberrational, not a harbinger of a Brave New World of increased judicial micromanagement of military policy. (30)

1. JUDICIAL REVIEW OF THE EXERCISE OF WAR POWERS

   1. The Constitutional Scheme

      The Constitution does not explicitly mention judicial review, much less say how it should be exercised in evaluating claims that Congress or the President acted unconstitutionally in taking war measures. Nonetheless, many clauses in the Constitution, read in light of its underlying structure and political theory, suggest...