A War Like No Other (22 page)

On September 24, 2009, Obama announced that he would not turn to Congress for establishing the promised oversight system.
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He said that support for his action was already provided by the Authorization for the Use of Military Force (AUMF),
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a statute passed by Congress immediately after September 11. On March 25, 2010, the legal adviser to the Department of State also made reference to this statute in defending the administration’s detention policy before the American Society of International Law.
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Yet these references to the AUMF seem inapposite. The AUMF authorized the president to use whatever force was necessary to apprehend and bring to justice whoever he determined was responsible for the September 11 attacks. As such, the statute gave legislative authorization for the war against al-Qaeda and against Afghanistan for harboring and sheltering al-Qaeda.
In technical terms, the AUMF provided the congressional declaration of war required by the Constitution. Yet it in no way functioned as the kind of oversight system Obama initially promised, which of necessity would be concerned with the prolonged detention of particular individuals.

On March 7, 2011—almost two years after his National Archives speech—Obama issued an executive order establishing an oversight system that sought to address the plight of particular individuals who were imprisoned but never tried. This oversight system is neither judicial nor legislative, as originally promised, but is lodged in the executive branch. It vests power in a board consisting of senior officials from six government departments and offices—the Departments of State, Defense, Justice, and Homeland Security, the Office of the Director of National Intelligence, and the Office of the Chairman of the Joint Chiefs of Staff—to determine whether the continued detention of each prisoner “is necessary to protect against a significant threat to the security of the United States.”
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This board’s determination is subject to a veto by the heads of the various departments and offices. If the board determines that a prisoner no longer remains a threat to the United States, and if that determination is allowed to stand, the secretary of state and secretary of defense are, by the terms of the executive order, required to make “vigorous efforts” to arrange for the prisoner’s transfer to another country. Obama’s new oversight system can thus be seen as a specially designed parole procedure, with a number of drawbacks—it is subject to control by political appointees, and the prisoners have never been tried or adjudged guilty of any crime by a court of law.

Others who have defended imprisonment without trial, such as David Cole,
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have proposed an oversight system that would be less politically sensitive and would in fact make the judiciary primarily responsible for case-by-case assessments of the basis of the executive’s decision to detain an individual. The federal
judiciary sitting in habeas might be utilized for this purpose, where the judge would have to determine whether there was a reason to imprison the individual in the first place (was he an enemy combatant?) and then whether there were still reasons to detain him (is he a threat to the United States?). Such a scheme would be a great improvement over Obama’s administrative parole system, but it still would not satisfy the principle of freedom, which requires not simply oversight by the judiciary but a trial determining the guilt or innocence of the accused.

The procedures governing a trial seek to protect the innocent by casting the burden of proof on the government and controlling the discovery and admission of evidence. Theoretically, these procedures can be replicated in an oversight system, but as a practical matter they are likely to be watered down. Otherwise, there would be no point to the exercise—avoiding a trial. Moreover, the allocation of power entailed in an oversight system is necessarily—as a theoretical matter—quite different from that in a trial. For one thing, the jury would be supplanted. In addition, when compared to cases tried without a jury, the responsibility of the judiciary would be diluted. In a trial without a jury, the task of the court is not to decide whether the government has good reason to believe that the suspect has committed a crime, as it would under a system of oversight, but to decide whether, in fact, the accused is guilty of the crime charged. In such a trial, the responsibility for determining guilt and thus to deprive an individual of his liberty is not shared with the executive but rests entirely on the shoulders of the judiciary, as due process of law requires.

The Scope of Obama’s Policy

In analyzing the policy of imprisonment without trial, I have treated Obama’s stance as a continuation of Bush’s. There are,
however, two differences between Bush’s and Obama’s respective positions, both of which stem from the circumstances under which Obama announced his policy, though it remains to be seen whether these differences are of any significance.

One difference arises from the number of persons affected by the policy. Obama announced his policy in the context of deciding the fate of some of the prisoners being held at Guantánamo. At the time there were about fifty such prisoners who would be subject to the policy. There were also indications that the policy would be applied to prisoners being held at Bagram Air Field in Afghanistan.
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Although the vast majority of the prisoners once held there—approximately six hundred—have been turned over to the Afghan government, we still have custody of a good number of them. They should be added to the ones at Guantánamo, in gauging the scope of Obama’s policy. Still, the number of persons to whom Obama’s policy applies is limited. Moreover, Obama’s policy does not have the open-ended quality of the policy Bush announced, which applied to all al-Qaeda and Taliban fighters, regardless of where they are captured or incarcerated.

The essentially vestigial quality of Obama’s policy is underscored by his treatment of Umar Farouk Abdulmutallab, a Nigerian citizen accused of trying to detonate a bomb on a Northwest flight as it was about to land in Detroit on Christmas Day 2009. Abdulmutallab was accused of being an operative of al-Qaeda, trained by the organization in Yemen, but he was immediately brought within the ambit of the criminal process, not treated as an enemy combatant.
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Similarly, Ahmed Abdulkadir Warsame, a Somali national accused of working with al-Shabaab and al-Qaeda, was captured by the U.S. military in the Gulf region on April 19, 2011. He was questioned for intelligence for over two months and then turned over to civilian law enforcement agents, and was arraigned in the Southern District of New York on July 5, 2011.
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These developments strike me as an encouraging turn of events, but there is still reason to object to the detention policy announced by Obama in his National Archives speech. The offense to the principle of freedom and the rule of law does not turn on the number of persons affected. Moreover, President Obama’s policy, even if embraced reluctantly and confined to a limited number of those imprisoned by the previous administration, will define what the government is allowed in the years ahead. It will lend a measure of legitimacy to Bush’s action and will have the inevitable effect of normalizing what should be seen as an offense to the Constitution.

Another circumstance limiting the scope of Obama’s policy is the fact that all the prisoners at Guantánamo and Bagram are foreign nationals. Initially, it was unclear whether Obama believed that the policy could extend to American citizens. A brief filed around the time of the National Archives speech stated that the policy of imprisonment without trial was to apply to “persons,” with no distinction between American citizens and foreign nationals.
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In 2010, Obama seemed to honor the principle of freedom in his treatment of Faisal Shahzad, a naturalized American citizen. Shahzad was arrested by civilian law enforcement officials, swiftly charged, and then brought to trial in federal court for attempting to detonate a bomb in Times Square.
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Yet that case did not necessarily indicate that Obama opposed imprisoning any American without trial. After all, his treatment of Shahzad was no different from that afforded to the Nigerian national Umar Farouk Abdulmutallab. However, at the end of 2011, more than two years after his National Archives speech, Obama went out of his way to draw a distinction between American citizens and foreign nationals. “I want to clarify,” he declared, “that my Administration will not authorize the indefinite military detention without trial of American citizens.”
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In this declaration, Obama broke from Bush. President Bush
was prepared to treat all al-Qaeda and Taliban fighters, including American citizens, as unlawful enemy combatants who could be imprisoned indefinitely without trial. This was evident in the cases of John Walker Lindh and Jose Padilla. It was also evident in the case of Ali Saleh Kahlah al-Marri, a citizen of Qatar who had lawfully been admitted to the United States for educational purposes. Al-Marri was taken into custody while enrolled as a student at Butler University in Peoria, Illinois, and, on the basis of alleged al-Qaeda links, was imprisoned as an unlawful enemy combatant in a naval brig in South Carolina for six years. As in the case of Jose Padilla, the government eventually changed its strategy. While a petition for certiorari was pending before the Court, and for the obvious purpose of mooting Supreme Court review of its detention policy, the government charged al-Marri with a specific crime, to which he later pleaded guilty.
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The imprisonment of any American citizen brings into play the Non-Detention Act of 1971, which provides that no American citizen can be detained without authorization of Congress.
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This statute was enacted as a belated repudiation of the internment of citizens of Japanese ancestry during World War II. The 1971 measure might be seen as a watered-down version of the principle of freedom—watered-down because it applies only to citizens; requires a grant of authority from Congress, not a trial; and seeks to protect the authority of Congress rather than personal liberty.

The force of the Non-Detention Act was further reduced by the Supreme Court’s decision in
Hamdi v. Rumsfeld
in 2004.
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In an opinion by Justice Sandra Day O’Connor, four justices ruled that the statutory authorization required by the 1971 act could be found in the AUMF—the statute passed immediately after 9/11 that authorized the use of force to respond to the terrorist attack on that day and that functioned as the declaration of war against Afghanistan. The Court did not rule on the government’s
further contention that even if the AUMF did not satisfy the requirement of the 1971 Non-Detention Act, the 1971 act did not provide any protection for American citizens who had been captured in an active theater of war.

In truth, the primary protection for the personal liberty of American citizens is not the 1971 Non-Detention Act or any other statute, but rather the principle of freedom as embodied in the Constitution. This principle’s protections are not confined to American citizens; they apply to citizens and noncitizens alike. The primary textual source of the principle is the Due Process Clause, which by its very terms protects the liberty of “any person,” and this provision should be seen as limiting the authority of United States officials wherever they act and against whomever they act.

As a general matter, the Due Process Clause and perhaps the Bill of Rights as a whole should not be read as a testamentary document distributing property or benefits (individual rights) to privileged classes of persons (American citizens) but as promulgating general norms defining the authority of U.S. officials. Although foreign nationals may not be part of the political community—the “We the People” that endows the Constitution with democratic legitimacy—the Constitution represents the political community’s definition of the standards of conduct that it expects of its officials wherever they act and against whomever they act. Accordingly, even though Obama’s policy of imprisonment without trial appears to be confined to persons who are not American citizens or those not lawfully admitted to the United States, as is true of the persons still incarcerated in Guantánamo or Bagram, it would, I contend, violate the Constitution and be as clear a breach of the rule of law as was Bush’s.

At the time of Obama’s National Archives speech, the Supreme Court had already handed down its decision in
Boumediene v. Bush.
The Court concluded in that case that the statute banning the writ of habeas corpus for persons determined by
the executive to be unlawful enemy combatants was unconstitutional. Justice Anthony Kennedy spoke for the Court, and in doing so he carefully avoided any broad pronouncements on the rights possessed by foreign nationals. He ruled that the Guantánamo prisoners were entitled to the protection of the provision of the Constitution limiting the powers of Congress to suspend the writ of habeas corpus but saw that provision as serving separation of powers and announced a multivariate test to determine its applicability. As he said, “[W]e conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”
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The application of this test will vary from case to case; in fact, the Court of Appeals for the District of Columbia decided that under the
Boumediene
test the Suspension Clause did not reach prisoners at Bagram Airfield, a U.S. military base in Afghanistan, largely because the base was located in a theater of armed conflict.
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But from the very terms of the test itself and its initial application, it is clear that the benefit of the Suspension Clause is not confined to United States citizens or even foreign nationals who are incarcerated within the sovereign territory of the United States.