When historians review the Bush/Cheney administration, likely they will conclude that, above all other administrations, it has shown the most disrespect for the Constitution. Nowhere has this disrespect been more evident than in the treatment of detainees and in the recent announcement by Defense Secretary Robert Gates that Guantánamo Bay prison will not close under the Bush administration.
The story of the detainees is about human beings and the dynamics of judicial process. It is a tale of suspected terrorists (Americans and non-citizens) ensnared in a radically novel legal system, locked up, often held incommunicado, and denied the protections usually provided by American law.
For over six years, as the detainee cases have gone from court to court and been batted from the Supreme Court to Congress and back again, debate has raged over one issue: Do detainees have the basic constitutional guarantees that no person (including non-citizens) shall be deprived of liberty without due process of law.
Throughout American history, wartime presidents have stepped beyond their customary constitutional powers while Congress and the courts have yielded to the needs of the time. For Presidents Lincoln, Wilson and Franklin Roosevelt, a nation at war opened the door to restricting fundamental liberties – habeas corpus, freedom of speech and freedom from unreasonable search and seizure. Under these earlier presidents, however, the historic balance of power was always restored at war’s end.
The nation survived crises of national security while continuing to honor the Bill of Rights and to treat as inviolable the basic principles of the Constitution. Americans accepted the pendulum swing that war brings. They tolerated the wartime Constitution because they were secure in the knowledge that the peacetime Constitution would be restored at war’s end.
Like previous conflicts, the war on terror has encouraged and permitted the executive to demand deference from other branches of government. In the name of national security, President Bush has claimed the power to make decisions without consulting or informing Congress or the courts. Sidelining traditional restraints on executive power, his presidency altered the relationship not only between the branches of government but also between the government and the public.
Secrecy, national security concerns, and the administration’s willingness to use law enforcement in disregard of an American tradition of civil liberties have prevailed. Now, six years after its onset, the war on terror continues, seemingly without end. Accordingly, the pendulum swing back to constitutional normalcy and a balance of power among the government’s branches hasn’t occurred.
At the center of this government imbalance and constitutional shift, symbolically and legally, has been the creation by the Bush administration of a new category of persons – applicable to U.S. citizens and non-citizens – called “enemy combatants.” This new category has created confusion between the established and widely accepted category of “lawful combatants” and “unlawful combatants.”
Lawful combatants include those members of militias and volunteer forces, according to the Geneva Convention, who are “commanded by a person responsible for his subordinates,” “have a fixed distinctive sign,” and carry “arms openly.” Essentially, they are battlefield captives who qualify as lawful combatants and are entitled to prisoner of war status, defined according to widely accepted international norms. They may be legally detained for a war’s duration and are subject to a lengthy set of international and U.S. military codes that ensure humane treatment by the detaining authorities.
Unlawful combatants are those who deliberately hide amongst civilians with the intent of making it impossible for the military and police to combat them. They do not enjoy the rights of the Geneva Convention. During World War II, Nazi saboteurs, who removed their uniforms and attempted to sabotage industrial targets in the United States were labeled unlawful combatants and tried by the Supreme Court in the Quirin case. In 1942, Chief Justice Harlan Fiske Stone writing for the Court said that (unlawful combatants) are “likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”
Citing Quirin as precedent, the government’s lawyers presented their radical strategy, asserting that the demands of national security and the unprecedented threat of Islamic fundamentalist terrorism required a re-reading of the law.
In a series of memos drafted by the Office of Legal Counsel beginning in the fall of 2001 and continuing throughout the Bush presidency, the administration asserted that not only were the Geneva Conventions on the categorization and treatment of prisoners “quaint” and “obsolete,” but so, too, were the traditional guarantees of right to counsel, right to habeas corpus, and the right to humane and decent treatment. Thus, the administration extricated the United States from the international obligations that have governed the treatment of prisoners in armed conflict since the middle of the nineteenth century.
In speeches and memos, the president and his lawyers would later use these baseline deviations from previously settled law to defend coercive interrogation techniques, to redefine torture so narrowly as to allow for techniques accepted from medieval times – e.g., waterboarding – and to denounce proper judicial processes, both in the military and the civilian context because they posed unaffordable risks to national security. Efforts by lawyers and the courts to enforce traditional laws on behalf of “enemy combatants” were considered by the Bush administration as impediments to the nation’s security.
Government lawyers have mostly deferred to Bush’s executive branch in time of war. Defense lawyers, meanwhile, argued that judicial deference and creating a new category of prisoner accompanied by new rules for their treatment threatened the overarching principles of what is just and legal – domestically and internationally. Is judicial deference in time of war justifiable or necessary? And what exactly are the rights of the detainees?
Lawyers can play a key role in sorting out these questions; At the least, lawyers should advocate that the remaining detainees at Guantánamo be swiftly brought to trial – using international standards – or released immediately. Such actions would help stem an eroding trust in American justice.
Karen J. Greenberg is executive director of New York University Law School’s Center on Law and Security and co-editor of “The Enemy Combatant Papers: American Justice, the Courts, and the War on Terror” (Cambridge University Press, 2008).