Equality in the war on terror.

• Author: Katyal, Neal Kumar

INTRODUCTION I. THE EQUAL PROTECTION GUARANTEE AS A CONSTRAINT ON GOVERNMENT CONDUCT A. The MCA and Alienage 1. The military commission provisions 2. The habeas corpus stripping provisions II. THE EQUAL PROTECTION GUARANTEE AND LEGAL PROCESS A. Substantive Constitutionalization in the War on Terror B. Deference C. The Undermining of National Security Policy and U.S. Reputation A broad CONCLUSION INTRODUCTION

Though they often skirt the legal perimeter, the Bush Administration's national security policies are undoubtedly creative. The Administration's inventiveness demands a similar agility from the lawyers challenging these policies, particularly since the federal courts are understandably reluctant to interfere with the Executive in the midst of an armed conflict. While procedural arguments based on the separation of powers have met with some success in the courts, new legislation resulting from new Administration strategies requires a fresh approach. The Equal Protection Clause is a powerful and, thus far, unused arrow in the constitutional quiver. Its greatest utility is that, like the separation of powers claim, it can be styled as an avoidance argument.

It is too difficult and too soon for courts to decide whether all of the federal government's post-September 11, 2001 policies are substantively correct. Despite the waves of litigation and commentary charging that the Administration's actions are illegal to the core, neither the courts nor the public have reached agreement, in just over five years, on how to balance individual liberty and national security. The questions posed by terrorism are just too new and the dangers of asymmetric warfare (both in probability and extent of damage) too uncertain at this early date.

Modern constitutional law has developed a variety of doctrines for courts to employ when the boundaries of personal liberty are vague. Separation of powers doctrine has come into vogue, for example, as litigants stress the role of Congress in curbing Executive excesses. The petitioner in Hamdan v. Rumsfeld, (1) for example, emphasized that military commissions required congressional approval, not just presidential fiat, to survive. That litigation strategy avoided asking the Court to freeze a particular substantive conception of law into place; it stressed instead that the Court did not have to decide whether military commissions were constitutionally permissible until Congress first authorized them. In effect, the claims in Hamdan can be seen as a species of constitutional avoidance canons--at least insofar as they avoid individual-rights claims. Avoidance doctrines are crucial not simply to sidestep judicial review that invalidates the actions of the political branches, but also to avoid review that ratifies them by upholding them against constitutional challenge. (2)

Hamdan v. Rumsfeld addressed one particular question regarding the balance of rights and security, but it deferred for future resolution a second, substantively different, problem: discrimination against aliens. Since the September 11 attacks, the government has repeatedly singled out aliens for special disfavor. This trend began with the President's ill-fated November 13, 2001 Military Order to establish military commissions to try suspected war criminals. (3) That order only applied to foreigners; American citizens were intentionally made exempt from that backwards trial system. Justifying this policy, then Attorney General John Ashcroft told Congress:

To those who pit Americans against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil. (4) Some refused to stay silent, including the Supreme Court of the United States in Hamdan. After the Court struck down the military tribunal order, however, Congress passed the Military Commissions Act (MCA), (5) which applied the same distinction between aliens and citizens. As such, the MCA shunts the millions of green card holders (6) and five billion people across the planet into a category that enables a different, and far inferior, trial procedure than what American citizens face. Since at least the ratification of the Fourteenth Amendment's equality guarantee, such legislation has never been placed in the United States Code. Particularly in an era of global constitutionalism and emphasis on the rule of law, such rank discrimination is constitutionally suspect.

The insistence on basic equality is the spirit animating the Fourteenth Amendment, the contemporaneous 1870 Enforcement Act, and repeated pronouncements in constitutional law about laws of general applicability from Chief Justice Marshall's decision in McCulloch to Justice Scalia's recent opinion in Cruzan. (7) It also tracks the modern revolution in the laws of war, codified most powerfully in the Geneva Conventions. And comparative experience suggests the importance of the principle in litigation, as recently underscored by the British House of Lords' decision to strike down its detention scheme on equality grounds because it discriminated against non-British citizens. (8)

While discrimination by the federal government against aliens might be justified when it is handing out government benefits, it is not appropriate when it determines whether someone can be put before a tribunal whose jurisdiction includes dispensing the most awesome powers of government, such as life imprisonment and the death penalty. When legislation singles out powerless aliens, moreover, the standard checks on government abuse, such as political accountability, fail to operate. The result is not only that the legislation runs afoul of the Constitution's guarantee of equal protection, it also eliminates that legislation from the zone of deference traditionally due to the political branches. To make matters worse, such line drawing on the basis of alienage also undermines effective fighting in the war on terror.

Now that Congress has begun to support, often hastily, some Bush Administration proposals, many are tempted to jump from the how of legislation to the what: questioning once again the substantive rights displaced by government activity in the war on terror. This individual-liberty strategy risks placing undue pressure on the courts to rule in ways that, in some cases, may shackle the Executive Branch in a time of armed conflict. The logic of equal protection challenges, by contrast, does not require the political branches to attain any particular substantive standard of protection; it merely requires that the chosen standard be doled out evenhandedly to all persons. In short, instead of asking about the how or what, scholars and litigators should begin examining who is affected by the legal framework. Separately, analysis will need to focus on where the legal framework is operating--e.g., a battlefield, naval base, airport in Chicago, or elsewhere--as the scope of the equality guarantee may differ in each locale. (9)

1. THE EQUAL PROTECTION GUARANTEE AS A CONSTRAINT ON GOVERNMENT CONDUCT

   Equality challenges have the potential to be the next big thing in the legal war on terror. Shortly after September 11, the impulse of many civil libertarians was to condemn legislation such as the PATRIOT Act as failing to comply with substantive constitutional guarantees. But those challenges largely failed or were deferred by the courts. Instead, the challenges that succeeded emphasized the lack of congressional support for actions taken by the Bush Administration. Now that Congress has begun to act in the war on terror, one might expect the focus of litigation to shift away from claims about the unilateral presidency to those about individual rights. But that path has considerable pitfalls, chief among them that it neglects the blatant discrimination against aliens in recent government policies.

   Before getting into the main example of the MCA, let me offer the key argument in this Article: when the contours of personal liberty are not clear, insistence upon equality in treatment will often be a way to achieve an optimal result. This tradition, which favors laws of general applicability, can be located in many places, such as Congress's 1870 Enforcement Act. Section 16 of the Act, now codified as the familiar 42 U.S.C. [section] 1981 (with minor changes), provided as follows:

   And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. (10) Most of this language, in turn, comes from its predecessor, the Civil Rights Act of 1866. It could be read, through our modern prism of race, to suggest that Congress was worried only about the newly freed slaves and race discrimination. That reading would not be without some justification, considering the drafters' repeated use of the word "white." (11) But the drafters of the Enforcement Act added language to the 1866 Act to focus on alienage. This is how they modified the next section of the Act, with the italicized words in 1870 replacing the predecessor (struckthrough) words from 1866:

   And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the...