by Professor Laurence Tribe
Reprinted from the July 1, 2004 edition of the Wall Street Journal
Whether the war we waged upon Iraq was faithful to the mission Congress entrusted to the President a week after the horrific al Qaeda attacks of Sept. 11, 2001, or was instead a distraction from that mission, will long be debated, as will the question of whether that war has made us safer or more vulnerable. Much will turn on what others around the world infer about the American character from our conduct of that war -- an inference likely to be strongly shaped by the searing pictures of Abu Ghraib and by Justice Department memoranda cynically dissecting the laws banning torture with a sensibility better suited to the parsing of tax-code loopholes than to the treatment of human beings.
With luck, the world's understanding of America will be shaped as well by what our Supreme Court, in three landmark decisions rendered this Monday, declared about the rights of those whom U.S. military authorities detain -- whether at Abu Ghraib, in Guantanamo or in a naval brig in South Carolina. The Court affirmed our Constitution's checks on the president's power unilaterally to designate anyone he chooses an unlawful enemy combatant and to imprison all who are so designated, incommunicado and indefinitely.
Even more will depend on how the American people and their elected representatives respond to those solemn judicial pronouncements. Will they leap rashly to "fix" the "problems" some will say the Court's opinions unleashed? Or will they pause to absorb the lessons that those opinions, in all their sobriety, have to teach?
The timing of the Court's three decisions did little to enhance the prospects for a measured, thoughtful response. It may be mere serendipity that the lead front-page story on Tuesday was the passing of the baton of formal sovereignty to Iraq -- an accelerated transfer that occurred at the very hour that the Supreme Court delivered its resounding answer to the president's plea for unbounded powers of detention and interrogation. Whatever the reason, the circumstances ensured that Tuesday morning's analyses of the justices' nuanced array of opinions would be unfortunately cursory. And, by the following day, the Court's decisions could safely be relegated to even sketchier post-mortem snapshots.
The upshot was media coverage of the Court's rulings that followed the familiar script, with accounts of how the glass was half-full offset by accounts of how it was half-empty. Some stressed how roundly the Court had rejected the president's position (and either celebrated that result as a victory for civil liberties or lamented its alleged weakening of national security), while others focused on how the Court counseled deference to the president's arguments and to the interests he invoked.
The truth lies neither at nor between those stereotyped poles, but on an axis perpendicular to the one along which they lie -- an axis marking the ways in which the Constitution, and the laws Congress enacts under its aegis, respect the imperatives of protecting the nation's survival and its people's security while rejecting, in Justice Stevens' apt phrase, the "tools of tyrants even to resist an assault by the forces of tyranny" -- so that we may, as Justice O'Connor perfectly put it, "preserve our commitment at home to the principles for which we fight abroad."
Among the most vital points on this axis is one embodied eight centuries ago in the Magna Carta: It is the people as represented in Parliament who are sovereign, not the king. The point, unsurprisingly, is even clearer in our Constitution: Not even as commander-in-chief may the president act contrary to the laws Congress makes to leash the dogs of war. Not a single justice failed to embrace that precept.
On reflection, no wise leader would even want the godlike powers a contrary view would confer. Who among us has not taken comfort in saying, truthfully, I did all the law allowed; to do more would have been illegal? Nor need any constitutional democracy have cause to regret the decision to bind its chief executive by the laws of the land. Whatever momentary advantage such an approach might seem to confer against a supranational terrorist network is likely to be dwarfed by the inestimable blunders any single individual or singleheaded branch of government is bound to commit when freed of all the constraints the representatives of all the people might enact.
The sole exception -- and it is the only one the justices seemed ready to allow -- is that for moments of "genuine emergency," when obeying a statutory restraint on someone's detention would pose "an imminent threat to the Nation and its people." Otherwise, the Court adhered unanimously to the proposition that even a wartime president must obey the law. The point might seem too obvious to belabor -- except for the fact that the Department of Justice's constitutional advisory arm, the Office of Legal Counsel, put forth the contrary view when it infamously defended the president's power to defy the laws and treaties banning the use of torture should he decide that the war on terrorism calls for such extreme measures.
The second vital point most clearly visible on the axis defined by the Court's terrorism rulings is a principle every member of the Court but one embraced: If enemy combatants are to be detained, the purpose must be either to charge and try them for specific crimes, or to keep them from "returning to the field of battle and taking up arms once again" in the "particular conflict in which they were captured."
The Justices' several opinions invoke that principle to define both the terms and the scope of permissible detention and the procedural protections due the potentially innocent. Those traditional rules limit preventive detention as an "incident of waging war" to detention that is "solely protective" in purpose, not an occasion for squeezing information out of the detainee.
The opinions taken together roundly repudiate the administration's entire rationale for holding detainees incommunicado and for denying them access to counsel who, even if not directing them to remain silent, would destroy the government's effort to deprive them of all hope that someone other than their interrogators might witness their plight and come to their rescue. The transparency these opinions demand as a hallmark of defensible detention could not be further from the spirit of secrecy that the administration's briefs and arguments insist is an indispensable element of intelligence-gathering detentions, even of individuals posing no danger if released, designed to last until the president is satisfied that no further information can be extracted.
What remains uncertain is how the analysis of the various opinions might play out where the "armed conflict" in which an alleged enemy combatant is taken prisoner and to which he may be prevented from returning is a world-wide battle not limited to a particular nation like Afghanistan, where we are fighting the Taliban, but manifested in a potentially endless series of terrorist attacks by a constantly metastasizing network of loosely linked "cells." The opinions of seven justices express grave constitutional concern about the prospect of the indefinite incarceration of combatants detained in such a conflict, at least if they are American citizens, but the most one can surmise from all these opinions is that the Court would insist on careful judicial oversight to ensure that there is sufficient reason not to put such individuals on trial or release them, presumably under whatever surveillance might be necessary.
Congress should not rush to authorize such potentially indefinite investigative detention; nor should it rewrite the habeas corpus statute that the Court interpreted, in the case of the Guantanamo Bay detainees, to afford judicial review of detention and its conditions to aliens and citizens alike if they "contend that they are being held in federal custody in violation of the laws of the United States" even "outside [our] sovereign borders." At a minimum, Congress should demand more than the Executive's naked assertion that the war on terrorism, unlike all the wars we have previously waged, truly requires the novel executive techniques the president wishes to employ -- and the restrictions on judicial oversight the president wishes to have Congress adopt.
Only one justice was prepared to regard the existing legal system as unequal to the admittedly daunting task of protecting the U.S. against global terrorism. Those who would tinker with that system should accordingly ask: Are we truly ready to see our nation pay the price of a Constitution no longer good for all seasons but subject to suspension on the say-so of the executive branch? Do we not, in the end, agree with that rarest of duos, Justices Scalia and Stevens, who joined in denouncing "the view that war silences law or modulates its voice" as one having "no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it"?