Deference or abdication: a comparison of the Supreme Courts of Israel and the United States in cases involving real or perceived threats to national security.

• Published date: 01 January 2013
• Author: Kaufman, Eileen
• Date: 01 January 2013

C. Detention

The United States Supreme Court has heard several cases in the post 9/11 world, raising questions concerning the constitutionality of the executive's indefinite detention of enemy combatants, the constitutionality of military tribunals, and the constitutionality of the suspension of habeas corpus. As described in Part I, the Court has found these cases to be justiciable and has addressed the merits, ruling in each case against the government but stopping short of detailing the procedures that must be followed.

The first of the Guantanamo cases was Rasul v. Bush, where the Court ruled, on statutory grounds, that Guantanamo detainees had the right to challenge their detention in federal court. (156) That same year, in Hamdi v. Rumsfeld, the Court held that Congress had authorized the detention of enemy combatants when it passed the Authorization for the Use of Military Force, but that individuals so detained in the United States must be afforded due process. (157) In determining how much process is due, the Court rejected the government's argument that, given the extraordinary interests at stake, the Court should defer to the military. The Court responded as follows:

                 We necessarily reject the Government's assertion that separation of
                 powers principles mandate a heavily circumscribed role for the
                 courts in such circumstances. Indeed, the position that the courts
                 must forgo any examination of the individual case and focus
                 exclusively on the legality of the broader detention scheme cannot
                 be mandated by any reasonable view of separation of powers, as this
                 approach serves only to condense power into a single branch of
                 government. We have long since made clear that a state of war is
                 not a blank check for the President when it comes to the rights of
                 the Nation's citizens. Whatever power the United States
                 Constitution envisions for the Executive in its exchanges with
                 other nations or with enemy organizations in times of conflict, it
                 most assuredly envisions a role for all three branches when
                 individual liberties are at stake. (158)
                

In order to determine how much process is due, the Court used the familiar Mathews v. Eldridge three part balancing test, which weighs the plaintiff's interests, the government's interests, and the risk of erroneous deprivations. (159) The Court found that the plaintiff's interests were substantial--"the most elemental of liberty interests--the interest of being free from physical detention;" the government's interests were weighty; and the risk of erroneous determinations was substantial and real. (160) The Court stated:

                 Striking the proper constitutional balance here is of great
                 importance to the Nation during this period of ongoing combat. But
                 it is equally vital that our calculus not give short shrift to the
                 values that this country holds dear or to the privilege that is
                 American citizenship. It is during our most challenging and
                 uncertain moments that our Nation's commitment to due process is
                 most severely tested; and it is in those times that we must
                 preserve our commitment at home to the principles for which we
                 fight abroad. (161)
                

The Court thus held that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertion before a neutral decisionmaker." (162) But the Court stopped short of prescribing the details of the hearing. Indeed, the Court noted that the proceedings "may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." (163) Thus, "exigencies of the circumstances" may warrant the admissibility of hearsay and the use of presumptions in favor of the government's evidence so long as the detainee retained the opportunity to rebut that evidence. (164)

Among the most historic of the Guantanamo cases was the Court's decision in Hamdan v. Rumsfeld, which challenged the constitutionality of military tribunals. (165) In a decision that has been compared to Nixon's defeat in the Watergate tapes case and Truman's defeat in the steel seizure case, (166) the Court held that the military tribunals created by presidential order were not authorized by Congress and violated the Uniform Code of Military Justice and the Geneva Conventions. (167) Article 3 of the Geneva Conventions requires humane treatment of captured combatants and prohibits trials except by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people." (168) The military tribunals were inconsistent with Article 3 because the detainee was not entitled to see the evidence; hearsay evidence and evidence obtained through coercion was admissible; and a two-thirds vote was sufficient for conviction. (169)

The Court also held that the Detainee Treatment Act, which purported to strip the federal courts of jurisdiction to entertain habeas corpus petitions by Guantanamo detainees, applied only prospectively and thus did not prevent the Court from hearing Hamdan's challenge. (170) In response, Congress enacted the Military Commissions Act of 2006, which denies habeas to all non-citizens held as enemy combatants. (171) The constitutionality of that Act was challenged in Boumediene v. Bush. (172) The Supreme Court originally denied certiorari, leaving the D.C. Circuit's decision upholding the Military Commissions Act intact. But after revelations about the tribunals operating as kangaroo courts, the Court took the unusual step of reconsidering and agreed to decide the question of whether Section 7 of the Military Commissions Act is an unconstitutional suspension of habeas corpus. (173)

The Court rejected the government's argument that the case presented a non-justiciable political question. Citing Marbury v. Madison, (174) the Court forcefully stated:

                 Our basic charter cannot be contracted away like this
                 Abstaining from questions involving formal sovereignty and
                 territorial governance is one thing. To hold the political branches
                 have the power to switch the Constitution on or off at will is
                 quite another. The former position reflects this Court's
                 recognition that certain matters requiring political judgments are
                 best left to the political branches. The latter would permit a
                 striking anomaly in our tripartite system of government, leading to
                 a regime in which Congress and the President, not this Court, say
                 "what the law is." (175)
                

Turning to the merits, the Court first decided that constitutional rights extend to those held in Guantanamo and rejected the government's argument that the Constitution stops where de jure sovereignty ends, finding that the United States has complete jurisdiction and control over Guantanamo and thus exercises de facto sovereignty. A sovereignty-based test would create serious separation of powers problems because "surrendering formal sovereignty over an unincorporated territory" while retaining total control over the territory would permit "the political branches to govern without legal constraint." (176)

The Court next decided that the Suspension Clause of Article I, Section 9, Clause 2, which prohibits the suspension of habeas corpus except "in cases of rebellion or invasion," has full effect at Guantanamo (177) and that the alternative procedures contained in the Detainee Treatment Act do not provide an adequate substitute for habeas corpus. (178) The defects in the alternative procedure included lack of assistance of counsel, constraints upon the detainee's ability to rebut the factual basis for the government's assertion that he is an enemy combatant, the admission of hearsay evidence, and the limited scope of circuit court review. (179) In reaching this result, the Court stopped short of prescribing what due process requires but was quite clear in rejecting the government's argument about the need to defer to the political branches when it comes to determining the availability of habeas corpus:

                 Our opinion does not undermine the Executive's powers as Commander
                 in Chief. On the contrary, the exercise of those powers is
                 vindicated, not eroded, when confirmed by the Judicial Branch
                 Within the Constitution's separation-of-powers structure, few
                 exercises of judicial power are as legitimate or as necessary as
                 the responsibility to hear challenges to the authority of the
                 Executive to imprison a person. Some of these petitioners have been
                 in custody for six years with no definitive judicial determination
                 as to the legality of their detention. Their access to the writ is
                 a necessity to determine the lawfulness of their status, even if
                 in the end, they do not obtain the relief they seek. (180)
                

The Court concluded its opinion by noting, "The laws and Constitution are designed to survive and remain in force in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law." (181) In other words, the Constitution must be complied with, even during the war on terrorism.

Cases challenging the detention of terrorism suspects have also reached the Israeli Supreme Court. Two of those cases resulted from Operation Defensive Wall, which began in March 2002 in response to a dramatic escalation of terrorist activities originating in the West Bank. (182) Israeli defense forces arrested and detained 6000 Palestinians in the West Bank. (183) The detainees were originally held in temporary detention facilities with those suspected of more serious offenses transferred to Ofer Camp for more intensive interrogation. Their detention resulted in two judgments of the Supreme Court: one relating to conditions at the detention facilities and the other addressing the length of detention without interrogation...