Today’s Trifecta–What Does it All Mean? (Pt. I: Hamdi)

It's safe to say that today's trifecta of opinions wasn't predicted by anyone. Bottom line: It's still a free country. And this is still a formalist court, which (like anti-formalism) has its virtues and vices.

Full texts of opinions:

Although Padilla seemed to raise the most critical issues, the court ducked them, so (at first glance) by far the most important opinion of the Hamdi-Padilla-Guantanamo trilogy turned out to be Hamdi. Click “more” for a long, first-impressions, post on Hamdi. I'll post subsequently, and more briefly, about the other two. Updated


Executive Summary: Hamdi wins 8-1, but under three different theories, none of which command a majority. The plurality opinion offers some guidance as to the minimal requirements for the hearing it orders be held, but other justices would give more, or not do it all. The district court will have its work cut out for it figuring out just what sort of hearing it should hold.

O'Connor's opinion for the court (the plurality commands only three other justices — Rehnquist, Kennedy and Breyer — plus four others who concur in the judgment in various ways) does not decide whether the President's inherent powers allow the detention of alleged enemy combatants. [Although it does say on .p 29, “we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances.”] Instead it holds that the authority was provided by Congress in the Authorization for Use of Military Force, 115 Stat. 224, which it says provides this power to detain US citizen combatants during the duration of hostilities (a very important caveat) implicitly when Congress authorized the use of “all necessary and appropriate force” against those responsible for 9/11. It's striking that much of the justification for this claim put forward in the opinion is drawn from cases in which the detainee was held as a POW. [Justice Thomas agrees with this analysis of the significance of the Authorization for Use of Military Force in his dissent, so I guess that counts as a holding of the court, more's the pity.] [update: for a more correct statement see below]

The court further emphasizes that this “War on Terror” could last for ever, and that under the government's theory of the cases, Hamdi thus has a real chance of never getting out alive; it fixes the end date when “active combat operations against Taliban fighters” cease in Afghanistan. (Slip at 13), and says he be held for that duration only— once it's determined he's in fact an enemy combatant.

So we reach the key issue: what procedure is due under the Due Process clause and the Habeas Clause given that Hamdi does not conceed he is an enemy combattant and wishes to be heard to challenge that determination. The government argued that its “Mobbs Declaration” — unsupported, conclusory, hearsay, sufficed and indeed was binding on the courts. The plurality, indeed the majority, rejects that, and good thing too.

Unfortunately, the plurality relies on Matthews v. Eldridge, a case originally about 'new property' rights (social security disability benefits) but since imported by Justice O'Conner to infect ordinary due process analysis even for liberty interests. Matthews requires that the court 'balance' interests, keeping in mind the costs of providing more procedural protections, an view that comes perilously close to the view that no right is really a “right” — not inalienable, just an interest to be traded off against others, with no clear rules to guide any judge. And into the thicket of balancing we go. On the one hand is the plaintiff's life; on the other the government's claim that the entire war effort will be undermined.

On Hamdi's side is his liberty interest, one in no way reduced ex ante by allegations raised about his affiliations: “Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior.” And, in words that have implications for the Padilla case, “History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.”

As for the government, it's fighting a war, and it gets to do that. That's important and weighty too. [Justice Thomas notes in his dissent that really using the Mathews test would weigh this interest so heavily that Hamdi would lose, which is indeed how I read Mathews. Justice O'Conner would answer that since she concludes the cost/harm of additional process is so low in this case, the balance tilts to Hamdi.]

So O'Conner tries to split the baby starting at page 25. 'No process' is too little process, but the District Court proposed too much. The plurality's answer (query: how much is “the Court's”?) to the 'some kind of hearing' required on these facts is (p. 26):

  • pre-hearing notice of the factual basis of the government's claim that he is an enemy combatant.
  • “a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker” * Does that mean cross-examination or not? It apparently depends on the circumstances, as the court holding the hearing can accept hearsay.
  • Evilly, “the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.” This seems to mean that once the government makes its case, “the onus could shift to the petitioner to rebut that evidence with more persuasive evidence” — no mean feat when you are locked up, the government controls the availability of its witnesses, and your are either dead or very far away. In this light the comment that “We think it unlikely that this basic process will have … dire impact on the central functions of warmaking” (p. 27) may be world-class understatement. [The Souter opinion takes this on, see below.]
  • The opinion is also surprisingly coy on the right to counsel issue, noting only that Hamdi has a lawyer now, and “unquestionably has the right to access to counsel in connection with proceedings on remand”. [Souter takes this as “affirmation of Hamdi's right to counsel”.]

Justices Souter and Ginsburg concur in the judgment, but otherwise dissent in part. They begin with the fact that the government denied Hamdi counsel for a year and half, and since then allowed it only on a grace and favor basis, all the while contesting its obligation to do so.

But its main point is that the plurality is wrong to find that if Hamdi is in fact an enemy combatant his detention, even for the duration, was authorized by Congress. Absent Congressional authorization for his detention, even on the government's version of the facts, Hamdi should be released pursuant to the Non-Detention Act, 18 USC § 4001(a): “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”.

The opinion contains a devastating explanation of why just about every ordinary rule of statutory and constitutional construction except the one that says 'war changes everything' demands this conclusion. And the fact that the statute was passed in 1971—during the Vietnam War—obviates the last argument. I am completely persuaded by this opinion that only a clearer statement by Congress that it meant to allow such detentions should suffice to overcome the very clear and precise command of the Non-Detention Act. Why at least Justice Breyer was not is something of a mystery.

The Souter opinion also makes the nice point that if the government's arguments are correct, then Hamdi, like other Taliban soldiers, should be entitled to the protections of the Third Geneva Convention. The conditions of his confinement are much more restrictive than that convention provides, and he doesn't get Red Cross visits. And even if the government is right that Taliban fighers shouldn't get 3rd Geneva status, that requires a military hearing, and Hamdi hasn't had that either.

As further support, Souter cites the PATRIOT Act. Passed just a little over a month after the Authorization for Use of Military Force, the Patriot Act says a suspected alien terrorist could only be held for seven days without trial or deportation; it would be weird indeed to read the Authorization for Use of Military Force as allowing so much worse treatment of a US citizen enemy combatant.

Souter makes a point of saying that on remand he would find a right to counsel, but “does not mean to imply agreement” with the plurality's assertion that the government might enjoy an evidentiary presumption in its favor.

Justice Scalia, joined by Stevens (!!) writes a brilliant formalist opinion. It's very persuasive, perhaps because it's so simple and tidy. Reading the Constitution you find two ways by which our government can deal with citizens (as opposed to aliens — they are POWs or perhaps enemy combatants) who war against it. One requires the suspension of the writ of habeas corpus, as Lincoln did in the Civil War.1 That has NOT happened since. The other is also specified in the Constitution: charge the offender with treason.

Scalia does a long analysis of the motivations for the Suspension Clause, showing how in the absence of suspension the powers the government claims over Hamdi (and Padilla one must assume!) are completely illegitimate. Furthermore, Scalia notes, there's no way to read the Authorization for Use of Military Force as a suspension either.

Then Scalia — former professor of administrative law — nails the key flaws in the plurality's conclusion:

It should not be thought, however, that the plurality’s evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what proce-dural protections it thinks appropriate. It “weigh[s] the private interest … against the Government’s asserted interest,” ante, at 22 (internal quotation marks omitted), and—just as though writing a new Constitution—comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a “neutral” military officer rather than judge and jury. See ante, at 26–27. It claims authority to engage in this sort of “judicious balancing” from Mathews v. Eldridge, 424 U. S. 319 (1976), a case involving … the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer.

To which I can only shout “YES!”

Then we get a classic piece of Scalia biting invective.

There is a certain harmony of approach in the plurality’s making up for Congress’s failure to invoke the Suspension Clause and its making up for the Executive’s failure to apply what it says are needed procedures—an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are con-cerned, of the other two branches’ actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts’ modest and limited role in a democratic society; but that by re-peatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.

And darned if Scalia isn't right about that too.

Scalia, unlike the previous two opinions, addresses Padilla:

Several limitations give my views in this matter a rela-tively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different. Cf. Johnson v. Eisentrager, 339 U. S. 763, 769–771 (1950); Reid v. Covert, 354 U. S. 1, 74–75 (1957) (Harlan, J., concurring in result); Rasul v. Bush, ante, at 15–17 (SCALIA, J., dissenting). Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation.

And, the last paragraph will undoubtedly be in casebooks too,

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitu-tion designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envi-sion, I respectfully dissent.

Justice Thomas, dissenting, takes a very different tack, well summarized in his introductory paragraph:

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U. S. 319 (1976). I do not think that the Federal Government’s war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government’s compelling interests and for our own institutional inability to weigh competing concerns correctly.

Thomas grudgingly admits that Congress might be able to “interfere” with the President's holding of detainees under the exercise of the war power—making even Thomas less Royalist than the OLC lawyers and the Vice-President in this administration—but his main point is that the courts in principle have no role.

But wait. The Courts do have a role after all, since they have to decide if Hamdi's detention is lawful. But somehow that determination doesn't extend to deciding any facts at issue. This pushes Thomas to make the following weird claim:

… although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, see, e.g., Ex parte Endo, supra, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is committed to other branches.

The “other branches” turns out to mean the “virtually conclusive” decision of the executive branch. Indeed, Thomas later writes that “due process requires noting more than a good-faith executive determination”—and then takes back the “good-faith” limitation in footnote 3! Even worse than that, in Thomas's view the duration of the conflict is whatever the President says it is. No checks, no balances. How depressing.

That said, Thomas is right about how Mathews balancing would work in this case if it had been followed strictly. First, he says it's the wrong test. But if one used it, the balance would surely swing to the government, since the interest in national survival, or victory, is greater than any single person's liberty interest. (Which is why I think Mathews is such a bad case — the individual almost always loses.)

Thomas also has a sort of point when in an attempt at reductio absurdum he notes that the plurality's view ought to require notice and hearing before military murders such as the CIA's firing a Predator missile at a vehicle that carried a US citizen in Yemen. There are distinctions (the CIA may not have known there was a US citizen in the car; it was abroad, Hamdi is here; the government of Yemen authorized the act on its territory so arguably the CIA acted as the agent of Yemen). But in fact why would be odd to have a rule that our government can't murder US citizens abroad? The rule wouldn't apply to battlefields or even behind-enemy-lines in wartime, but ought well to apply in neutral countries — why not? (Imagine Nixon toying with the idea of getting Hanoi Jane while she was vacationing in Cannes….)

In summary, eight members of the Court think Hamdi (and, by implication, Padilla) is at least entitled to a hearing, with four saying he should be sprung straight away, albeit two on statutory and two on constitutional grounds. The poor district court doesn't get very clear directions about what process is due on remand. Four Justices in plurality say it should be a uniquely crabbed process. Two others would give more, two don't really address it. One says no process is due. And, the plurality's views are a floor, not a ceiling, and the opinion admits more process if the circumstances and dictates of witness availability and national security permit.

It could be a procedural donnybrook below…

UPDATE: Mark Tushnet points out in correspondence that

In Part IV of his opinion, Souter says that he “join[s] with the plurality in ordering remand on terms closest to those I would impose.” So, on the due process issue, there's a majority holding on what process is required.

He's right. So the plurality rule is a floor, but the district court in theory has discretion to give more process if it believes circumstances warrant and permit it.

Update 2 on Aug 7, 2004: The Bush Administration appears to have decided to resist the application of this decision in every way it can.

1 Scalia endorses Story and Taney's view that Lincoln's unilateral suspension of habeas corpus was illegal, as he should have gone to Congress for authorization!

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14 Responses to Today’s Trifecta–What Does it All Mean? (Pt. I: Hamdi)

  1. Simon says:

    1) Can someone explain to me how Justice Thomas’s view of the power inherent to the executive in wartime would not allow the President and/or his delegate to, say, detain five members of the Supreme Court indefinitely and incommunicando based solely on his declaration that they were engaged in operations that obstructed the war-making effort?

    2) To ask the same question a different way: what distinguishes the sorts of constitutional rights Hamdi and Padilla have here from any other sort of constitutional right (e.g., First Amendment) such that the former are subject to the President’s unlimited war-making discretion but the latter aren’t? And what justification do we have for drawing those distinctions?


  2. Brad DeLong says:

    Wasn’t Lincoln’s suspension of habeas corpus illegal? Doesn’t the power to suspend habeas corpus clearly belong to the Most Dangerous Branch? Isn’t it a good thing now to pretend that Lincoln’s actions never took place?

  3. Dem says:

    Thanks for the great summary.

  4. Nicholas Weininger says:

    Forward-looking questions here: Suppose Padilla works its way up again and the courts hold, as now seems probable after Hamdi, that he has at the very least a right to a review hearing. There are other known cases, for example that of Iyman Faris, in which prosecutors extracted guilty pleas from criminal suspects by threatening to declare them enemy combatants– at a time when this was understood to mean they would get no hearing at all.

    1. Would Faris have an opportunity to get his guilty plea reversed if Padilla is decided as expected?

    2. If not, would the unconstitutionality of the threat used to force the plea at least taint the plea enough to make it unusable as evidence in subsequent trials on terrorism charges– e.g. the trial of Nuradin Abdi, whose indictment alleges that he was a co-conspirator of Faris?

  5. One of the questions you often hear regarding war powers is why Congress doesn’t exercise them and make declarations of war, rather than provide the executive with vaguely-worded authority. With Congress ducking its Constitutional powers, we see an executive that claims ever more authority.

    We now see this doctrine with regard to Congress’ power to suspend habeas corpus. The Court is unanimous on one point, that Congress grant of authority to the President to hold people did not suspend the great writ. However, with a vaguely worded legislative act that will allow Congress to say, “we never meant that,” the Executive can now do a whole bunch of things that may come pretty close to suspending the writ (we don’t know how far due process will actually extend in these cases, but the courts will probably be pretty darn deferential).

    Courts will be the convenient scapegoats for any lack of due process complaints. The President will only be doing what the courts allow and Congress will be able to duck responsibility and straddle what it meant in its vague words of authorization.

    I think Congress is one of the big losers here, but its their (and our) own fault. Scalia is right on this one.

  6. Michael says:

    Lincoln’s suspension of the writ was and remains very controversial. The constitution is not clear on the issue; a strucutural reading to my mind suggests that Congressional action should be required. On the other hand, until recent years it was very common to suggest that there is a sort of ‘constitutional common law’ and that some ambiguities get filled in by practice. In that vision, because Lincoln got away with it, that’s a strong precedent it’s lawful.

    You still see arguments in separation of powers based on practice, but they don’t have the resonance they used to have now that the SCT is so willing to meddle with the balance of power. I’d date the shift to Chadha but that’s just a guess.

    I think if a President were to suspend the writ unilaterally in a crisis, citing the Lincoln precedent, there’s a very good chance that Congress would go along with it. Most of the court would probably treat this as a political question (a doctrine I don’t like, but it’s there) and thus “non-justiciable” which means that the status quo, usually set by the executive branch, wins.

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  8. Thomas says:

    I’m struck by the plurality opinion’s insistence that al Qaeda was responsible for the 9/11 attacks, and that those associated with al Qaeda and the Taliban were the proper targets of the Congressional use of force authorization. Has that record been developed in the lower courts? Are we simply to trust the executive branch on this? Isn’t there a role for the courts in checking the power of the executive, testing his claims? I, for one, am rather hoping for a full exploration in a courtroom of the facts and circumstances of the attack. Perhaps the Mossad committed the attacks, or the CIA. One shouldn’t rule these things out without a full hearing. It is just as relevant a question for any particular detainee as the circumstances of his capture.

    That the plurality opinion defers to the executive on this point–insistently and consistently throughout the opinion–may tell us everything we need to know about the relative institutional capabilities of the several branches. That the plurality opinion both recognizes it and rejects it says all we need to know about the consistency of the opinion, or any O’Connor opinion, for that matter.

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  10. Mark Bahner says:

    Brad DeLong writes, “Wasn’t Lincoln’s suspension of habeas corpus illegal?”—->Yes…and there were far more extenuating circumstances in Lincoln’s case.

    “Doesn’t the power to suspend habeas corpus clearly belong to the Most Dangerous Branch?”—->Without question, that power is reserved to Congress. The Founding Fathers would have been fools to give that amount of power to a single person.

    “Isn’t it a good thing now to pretend that Lincoln’s actions never took place?”—>No, it should continually be thrown in the face of those who foolishly call Lincoln one of our greatest–or even *the* greatest–presidents.

  11. Mark Bahner says:

    “The President will only be doing what the courts allow…”

    He doesn’t take an oath to “Do what the courts allow.” He takes an oath to “preserve, protect, and defend the Constitution.” (Unfortunately, there is virtually no doubt in my mind that President Bush has probably never even read the Constitution…let alone that he could answer a simple question like, “To what branch of government is the power of suspension of habeas corpus given, and under what circumstances?”)

  12. Mark Bahner says:

    “Lincoln’s suspension of the writ was and remains very controversial. The constitution is not clear on the issue;…”

    ??! It’s clear as a crystal bell.

  13. Theophylact says:

    Lincoln’s suspension of habeas corpus may well have been illegal, as it was without Congressional authorization; but at least it met the Constitutional requirements of “cases of rebellion or invasion”.

  14. Evelyn Blaine says:

    I don’t really see that there’s all that much uncertainty about this — Ex parte Merryman is still a valid
    precedent, is it not?


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