The Supreme Court, the Detainees, and the "War on Terrorism"

By Joanne Mariner, FindLaw.com. Posted July 6, 2004.

Although widely viewed as a blow to the Bush administration's approach to fighting terrorism, the Supreme Court's rulings last week in the detainee cases hardly addressed the "war on terrorism" as such. The decisions were powerful, historic and important, but still surprisingly modest in their conceptual scope.

Rather than tackling the fundamental questions raised by the administration's worrying tactics and radical justifications, the Court seemed determined to stay on familiar terrain. Examining the powers of the president in time of war – traditional war – and the core procedural rights of detained persons, the rulings did little to resolve the most hotly-debated questions that the country now confronts.

Are we engaged in a global "war on terrorism" – not just in Iraq and Afghanistan, but in Bosnia, Western Europe, and, indeed, New York and Chicago? Are terrorists criminals, or are they soldiers in an enemy force? Should they be tried and convicted in civilian courts, or should they be detained without charges for decades?

By dismissing the case of José Padilla on technical grounds (concluding that it was filed in the wrong judicial district), the Court sidestepped these larger issues. Padilla, arrested in 2002 on American soil, has been held without charges for more than two years. An alleged associate of al Qaeda, he is not being detained in connection with any traditional war, but solely as a terrorist suspect.

Sometime in the future the Supreme Court will likely revisit Padilla's case and address the key issues it raises. In the interim, lower courts considering the legal implications of the "war on terrorism" will be parsing the Court's detainee rulings for guidance. Although the opinions fail to set out a coherent governing framework for understanding these issues, they do offer tantalizing hints of the Justices' broader views.

Detention until the End of the War in Afghanistan, Not the "War on Terror"

The most telling and significant passage is found in Justice O'Connor's plurality opinion in the case of Yaser Hamdi. Hamdi, an American citizen detained by U.S. forces in Afghanistan in late 2001, was brought to Guantanamo and then the U.S., and has been detained without charges for more than two years.

In a victory for the administration, O'Connor upholds the government's power to detain American citizens as enemy combatants. Yet, importantly, she does not do so in relation to the ill-defined "war on terror," but in relation to a far more conventional conflict: the war in Afghanistan.

Drawing attention to the "clearly established principle of the law of war that detention may last no longer than active hostilities," she notes, pointedly, that combat operations are ongoing in Afghanistan. Since the war in Afghanistan continues, she concludes, the U.S. may still detain members of the opposing force – the Taliban – who participated in that war. In Hamdi's case, this ruling leaves only the factual dispute over whether he belonged to the Taliban and took part in the conflict.

The opinion's support for traditional wartime detention practices is prefaced by its pointed questioning of the much broader position that the government supports. Referring, in quotes, to the "war on terror" (thus demonstrating skepticism about the actual status of that effort), O'Connor notes that under the government's reasoning Hamdi could be detained for the rest of his life.

The "war on terror," unlike the war in Afghanistan, is likely to last for decades, if not longer. To detain someone for the duration of such an ambiguous and extended conflict, O'Connor suggests, is not something that she would endorse.

To the contrary, she indicates that detention rules that have been recognized as legitimate in traditional wars are not automatically applicable to the fight against terrorism. As she explains, "[i]f the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war," the Court might not conclude that Congress had authorized such detentions.

What the Justices Are Thinking

Scattered here and there in the three detainee decisions are many more such nuggets. There is Justice Scalia's view, in his Hamdi dissent, that it is up to Congress to decide whether the September 11 terrorist attacks were acts of war, and Justice Stevens's warning, in his Padilla dissent, that the administration's treatment of the petitioner represents "a unique and unprecedented threat to the freedom of every American citizen." Much of this discussion is in dicta, or in opinions with little precedential value, but by piecing it together one gets a rough understanding of the Justices' thoughts on these issues.

A good deal could happen before the Supreme Court rules definitively on the core legal questions of the "war on terrorism." Because Padilla's attorneys must start again from the beginning, re-filing in the district court, it will be at least a year, probably two, before the case returns to the Court on appeal. And this assumes that the Bush administration keeps Padilla in detention instead of charging and prosecuting him in the criminal courts.

Any change in the Court's make-up could affect its disposition of these issues, as could, perhaps more importantly, any future large-scale terrorist acts. By failing to settle the legal value of "the war on terrorism," the Justices have left open the option of changing their minds. But now, at least, we have a better sense of what they are thinking.

Joanne Mariner is a human rights attorney.

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