The biggest civil-liberties issue that the nation has confronted since September 11-indeed, the biggest in many years-is getting only a fraction of the attention it deserves. One reason is confusion over exactly what is at stake. The real issue is not whether the government can detain "enemy combatants" in military brigs without criminal charges. It can. The U.S. Court of Appeals for the 4th Circuit so stated in a July 12 preliminary ruling. Based on World War II precedents, it seems almost certain that the Supreme Court will agree.
The real issue is whether the government can refuse to give people it says are enemy combatants any opportunity, ever, to tell their side of the story to any court, any lawyer, or the public, and can instead keep them in solitary confinement for months, years, perhaps decades-even if they are U.S. citizens, and even if they were arrested in this country in civilian clothes.
That is the Bush administration’s argument in the pending cases of Yasser Esam Hamdi, who was born in Louisiana and captured in Afghanistan, and Jose Padilla, who was born in New York City and arrested at O’Hare International Airport in Chicago. Padilla was famously accused by Attorney General John D. Ashcroft-based on sketchy evidence from untrustworthy informants that would not come close to supporting a criminal prosecution-of "exploring a plan to build and explode … a `dirty bomb’ in the United States." Both men are being held incommunicado in military brigs. They may be the first of many, officials have indicated.
The administration does not only claim the unilateral power to strip from such suspected enemy combatants the fundamental right to be heard. It has also barred independent scrutiny of the evidence even by military courts, a policy that is far more debatable (especially in Padilla’s case) than in the conventional case of a uniformed enemy soldier captured on the battlefield.
The administration has pointed to no plausible reason that this complete denial of due process is necessary to fight terrorism. It claims that giving detainees access to lawyers (who typically urge suspects not to talk) might interfere with efforts to interrogate them. But authorities have now had 17 weeks in which to interrogate Padilla without even letting him see a judge, let alone a lawyer. If the outside chance of extracting new information from a suspect after weeks of interrogation does not justify torture, how can it justify endless solitary confinement without a hearing?
The administration’s position is, in short, radical, fraught with the risk of victimizing harmless innocents, and unnecessary in the fight against terrorism. It is also essentially unprecedented: No U.S. court has ever held that U.S. citizens who deny being enemy combatants can be incarcerated indefinitely in military brigs with no due process at all.
Indeed, the administration position is so outrageous as to run a very great risk of provoking the Supreme Court to put aside the judiciary’s habitual deference to the president on military matters and hand Bush a humiliating defeat. Chief Judge J. Harvie Wilkinson of the conservative 4th Circuit, while stressing this tradition of deference, pointedly refused in the July 12 ruling to "summarily embrace" the administration’s "sweeping proposition … that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so."
But the administration nonetheless continues to press essentially that proposition in the Hamdi and Padilla cases. The Justice Department is appealing to the 4th Circuit a federal district judge’s angry rejection of its claim that he must accept as conclusive a presidential order and a two-page "declaration" by a Pentagon bureaucrat. It claims that Hamdi was carrying a Kalashnikov rifle when Northern Alliance soldiers captured the Taliban unit that he allegedly admitted having joined. Does Hamdi deny this? We won’t know unless he gets a hearing.
The government is on even weaker ground in the case of Padilla, who was initially detained as a material witness and was handed over to the Pentagon only after it had become apparent that the Justice Department had no legal basis for continuing to incarcerate him. Government lawyers rest Padilla’s detention solely on another presidential order and another declaration by the same Pentagon bureaucrat. This declaration says that Padilla was "closely associated" with Qaeda leaders, had explored with them the possibility of a dirty-bomb attack, and had been sent from Pakistan to Chicago "to conduct reconnaissance and/or other attacks." The declaration attributed these allegations in large part to "confidential sources" who (it admitted) "have not been candid" on some matters. Padilla told relatives he was coming to Chicago to visit his 12-year-old son, according to his lawyer; the lawyer has not been allowed to see or speak with him since he disappeared into military custody.
The government may well be right about Hamdi and Padilla. But we are creating a system of detention that could endure for many years and ensnare many people. This is the government that (during the Clinton administration) made false or misleading representations in more than 75 cases to the special Foreign Intelligence Surveillance Court, which considers applications for wiretaps and searches of suspected foreign terrorists and agents. And this is the administration that has been quite wrong about many of the more than 1,200 people whom it suspected of having terrorist ties and incarcerated for possible immigration violations or crimes, or as material witnesses.
Perhaps the most vivid example is an Egyptian student named Abdallah Higazy. He was arrested and held as a material witness after an aviation radio was found in a hotel room in which he had stayed on September 10 and 11; the room faced the World Trade Center. The FBI told a federal judge that Higazy had confessed to owning the radio, after initially denying it. This much was true: Higazy had said what his FBI interrogator told him to say after hours of interrogation so intense that, as Higazy later put it, "I felt I was going to faint," and-he claims-after the interrogator had threatened his family. Higazy was charged with lying to investigators and paraded before the media as a terrorist. But then an American pilot who had previously stayed in the same hotel room turned up and claimed the radio as his own. The government had to admit that Higazy was entirely innocent and his confession was false. The judge is investigating whether the FBI intentionally misled him.
What would have happened to Higazy if he had been thrown into the "enemy combatant" box, with no chance to tell his story to any judge, lawyer, or journalist? Will the courts really let the administration do that to people?
I think not. I think the administration is headed for a stern judicial rebuff, possibly at the hands of the Supreme Court. I can’t be confident of that. But the administration’s lawyers (unless I underestimate them) can’t be confident that they will win-not unless the administration gives the courts some reason to think that it has taken reasonable steps to minimize the risks of abuse and mistakes.
The best way would be to give each suspected enemy combatant a hearing before a military court, or perhaps before a special military commission of the kind that President Bush authorized last November. Most such hearings could probably be completed in hours or even minutes, without the strict rules of evidence or the time-consuming rituals of a criminal trial, and without any public airing of classified evidence.
(The 500-plus men captured in Afghanistan who are now incarcerated at Guantanamo Bay, Cuba, are probably outside the jurisdiction of U.S. courts, because they are neither U.S. citizens nor detained in U.S. territory. But fairness and diplomacy nonetheless argue for giving them some kind of hearing, too.)
The Pentagon could use procedures akin to those it has already approved for Bush’s so-far-nonexistent military commissions. A citizen-detainee need not be given access to a lawyer (in my view) unless and until he challenges the government’s factual basis for claiming that he is an enemy combatant with enough plausibility to convince judges that an evidentiary hearing is warranted. In most and perhaps all such cases, the federal courts could confine themselves to reviewing the military record to ensure the fairness of the hearing and the adequacy of the evidence.
If the administration continues to spurn even the rudiments of due process in the cases of U.S. citizens such as Padilla and Hamdi, the federal courts will have to choose. They could order the Pentagon to conduct evidentiary hearings. They could hold hearings of their own. Or they could rubber-stamp a presidential power-grab that smacks of tyranny.