War And Liberties
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MARGARET WARNER: Today, the high court justices heard what are widely regarded as the two most important cases yet, testing presidential power in the post- 9/11 world. The Supreme Court released audio tapes immediately after the arguments. Marcia Coyle of the National Law Journal was in the court today, and is with us now to guide us through today’s proceedings.
Welcome back, Marcia.
MARCIA COYLE: Thank you.
MARGARET WARNER: Why are these cases regarded as so significant?
MARCIA COYLE: These are really extraordinary cases because the Supreme Court has not dealt with these issues on many occasions. And when it has, it has been in the context of wars very different than the war on terrorism. From these two cases and the Guantanamo Bay cases, we are going to learn something about the extent of the president’s power in time of war, the rights of American citizens when the powers directed at them, and more broadly, how this Supreme Court balances civil liberties and national security concerns.
MARGARET WARNER: Now there two defendants, and they had two different lawyers. But they are both U.S. citizens. Give us brief thumb nail sketches of each of them, starting with Yaser Hamdi.
MARCIA COYLE: Yaser Hamdi was born in Louisiana when his father who is Saudi was working on an oil rig; he grew up in the Middle East. He kept dual citizenship. The government alleges shortly before 9/11, he went to Afghanistan, trained with the Taliban and was part of a Taliban unit armed and combative during the hostilities with the United States and our allies, was captured by allied forces, turned over to the United States. The United States discovered he was an American citizen when he was held in Guantanamo Bay, transferred him to a military brig in Norfolk, Va.
MARGARET WARNER: And then Jose Padilla.
MARCIA COYLE: Padilla. Born in Brooklyn, grew up in Chicago. He was a former gang member. He converted to Muslim. He is alleged by the government to have gone to Pakistan and other countries to visit with al-Qaida operatives and conspired in a plot to detonate a dirty bomb in the United States. He was arrested in Chicago, taken to New York to be a witness before a 9/11 grand jury the president designated him as an enemy combatant. He was transferred to military authorities and is in a brig in South Carolina.
MARGARET WARNER: Both have been held without charges, essentially. Now … though they are different. And they have, as you just told us, different fact situations, it fair to say they’re essentially seeking the same kind of relief from the Supreme Court and on the same basic kind of constitutional and legal grounds?
MARCIA COYLE: Yes, it is. There are essentially two issues before the court in both these cases. Hamdi is saying that as an American citizen, he has a right to full process in American courts. And he and Padilla are both challenging the authority of the president to hold them indefinitely as enemy combatants
MARGARET WARNER: Padilla’s lawyer, Jennifer Martinez, made quite a passionate argument on just this point. Let’s listen to that.
JENNIFER MARTINEZ, Attorney for Jose Padilla: The government cannot take citizens in this country off the street and lock them up in jail forever without a trial. That is never the way this country has operated, and it is fundamentally inconsistent with our traditions. And so I would submit that today is not the day for this court to decide whether that’s permissible. The government asks in this case for basically limitless power. And however grave the circumstances of the war terror may be, this nation has faced other grave threats. We’ve had war on our soil before and never before in the nation’s history has this court granted the president blank check to do what ever he wants to American citizens. So the fact that we’re at war does not mean that our constitutional rules do not apply even in war time, especially in wartime.
MARGARET WARNER: All right. And what was the government’s main retort to that or rejoinder to that?
MARCIA COYLE: The government does have authority. The president has authority as commander in chief of the military and also because of a congressional resolution that authorizes the use of all necessary and appropriate force against countries, organizations and persons involved in this war.
MARGARET WARNER: All right. Now Paul Clement, the deputy solicitor general who represented the government in both of these cases, he had an exchange with Justice Ginsburg in which she challenged him as to why are Hamdi and Padilla being treated differently than John Walker Lindh. The case we are all familiar with. He is an American citizen. He came back and got processed through the civilian courts. Let’s listen to that.
PAUL CLEMENT, Deputy Solicitor General: Petitioners contend that the government categorically lacks the authority to hold Hamdi as an enemy combatant. But it has been well-established and long established that the government has the authority to hold both unlawful enemy combatants and lawful prisoners of war captured on the battlefield in order to prevent them from returning to the battle. Over 10,000 United States troops remain on the field of battle in Afghanistan. No principle of the law or logic requires the United States to release an individual from detention so that he can rejoin the battle against the United States.
RUTH BADER GINSBURG: How does the government justify some going through the criminal process others just being held indefinitely?
PAUL CLEMENT: Well, Justice Ginsburg, I think that reflects a sound exercise of prosecutorial and executive discretion. There are some individuals who may be captured in a situation where they do not have any particular intelligence value, they have been handled in a way where there are no difficult evidentiary questions that would be raised in a criminal prosecution, and those individuals can be dealt with in the Article III system. But there are plenty of individuals who are … either have a paramount intelligence value that putting them into the Article III system immediately and providing them with counsel, whose first advice would certainly be to not talk to the government, is a counterproductive way to proceed in.
MARGARET WARNER: Now Hamdi’s lawyer, Frank Dunham had a quite a scathing response to Mr. Clement’s presentation. Let’s hear that.
FRANK DUNHAM, Attorney for Yaser Hamdi: Mr. Clement is a worthy advocate, and he can stand up here and make the unreasonable sound reasonable. But when you take his argument at core, it is: “Trust us.” And who’s saying, “trust us”? The executive branch. And why do we have the great writ?
We have the great writ because we didn’t trust the executive branch when we founded this government. That’s why the government saying “trust us” is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment that “no man shall be deprived of liberty except upon due process of law.” We have a small problem here. One citizen — we’re not talking about thousands — one citizen caught up in a problem in Afghanistan. Is it better to give him rights, or is it better to start a new dawn of saying there are circumstances where you can’t file a writ of habeas corpus, and there are circumstances where you can’t get due process? I think not.
I would urge the court not to go down that road. I would urge the court to find that citizens can only be detained by law. And here there is no law. If there is any law at all, it is the executive’s own secret definition of whatever “enemy combatant” is. And don’t fool yourselves into thinking that that means somebody coming off a battlefield, because they’ve used it in Chicago, they’ve used it in New York, and they’ve used it in Indiana.
MARGARET WARNER: Now some of the justices seemed, though, troubled by the practicality of what Hamdi and Padilla’s lawyers were asking for?
MARCIA COYLE: This goes to the habeas corpus issue. Mr. Dunham is saying that as an American citizen, even though he may be an enemy combatant, he has a right when he goes into federal court with a petition of habeas corpus to be heard. What happened in his case was a federal appellate court basically said once the government came forward with a declaration, outlining why they’ve designated Hamdi as an enemy combatant, that’s it. Hamdi does not have an opportunity to challenge that or gather evidence or hear witnesses. This is what the court now was probing. How practical is it for an enemy combatant, and here one that was captured on the battlefield to get witnesses and evidence to a court in the United States during ongoing hostilities?
MARGARET WARNER: Let’s listen to this interesting exchange between Justice Scalia and Hamdi’s lawyer, Mr. Dunham.
ANTONIN SCALIA: What would you expect the military to do? As I understand it, he wasn’t even captured by our own forces. He was captured by allied forces and turned over to our forces, right?
FRANK DUNHAM: Well, that’s certainly part of the problem, your honor. We have a strong…
ANTONIN SCALIA: Well, it is. You want them to run down the members of the Afghan allies who captured this man and get them to testify in a proceeding? It’s just putting unreasonable demands upon a war situation. I just…
FRANK DUNHAM: Your honor, I don’t … my view is that it can never be an unreasonable demand to comply with the habeas corpus and the Fifth Amendment.
MARGARET WARNER: But now did it seem to you that other justices still remained troubled about this notion of basically unchecked executive authority to declare any U.S. citizen an enemy combatant?
MARCIA COYLE: Yes, some justices were probing Mr. Clement for how far does the government’s position go here — can you take an enemy combatant and can the president order him to be shot? And the government tried to explain to the court that basically we are not talking about unchecked power here. Our power is derived from a congressional resolution authorizing the use of necessary and appropriate force.
MARGARET WARNER: And this is the resolution that was passed what, a week … a week after the one you described earlier, a week after 9/11.
MARCIA COYLE: That’s correct.
MARGARET WARNER: Other justices seemed very concerned about the open ended nature of that congressional resolution. Here’s a sampling — we’ve got Justices O’Connor, Breyer and Souter and the other voice we’ll hear is that of the government lawyer Paul Clement.
SANDRA DAY O’CONNOR: If we ever had a situation like this, where presumably this status, warlike status, could last for 25 years, 50 years, whatever it is –
STEPHEN BREYER: Let’s say it’s the 100 Years’ War. Is there no opportunity for a court, in your view, to say that this violates for an American citizen the elementary due process that the Constitution guarantees?
PAUL CLEMENT: I mean, you can imagine a situation where the evidence and the government’s own affidavit shows that somebody’s only detained with regard to a war in Afghanistan. And then you could imagine that that has been signed, sealed and delivered — it’s over, the president says so, Congress says so — and there’s an effort to continue to detain that individual.
DAVID SOUTER: Well, I can imagine it. And I can also imagine that concern about Afghanistan will go on as long as there is concern about al-Qaida, and there is no end point that we can see at this point to that. So that it seems to me your answer boils down to saying, “Don’t worry about the timing question, we’ll tell you when it’s over.”
MARGARET WARNER: And was that essentially what the government lawyer was saying?
MARCIA COYLE: Yes. I believe it was. And as I think Mr. Dunham said in his comments, basically the government is saying, you know, trust us. We will say when this has been resolved.
MARGARET WARNER: Now there was another interesting issue that Justice David Souter brought up and Padilla’s lawyer, Ms. Martinez brought up, that maybe it is up to Congress now to do something else. What were they driving at there?
MARCIA COYLE: This was — there were a number of comments about Congress and the argument — in the argument. The concern here is that okay, we are holding people indefinitely. Congress issued this resolution a week after 9/11. It’s been two-and-a-half years that these two men have been detained. Maybe it’s time that Congress has a responsibility to revisit the resolution or the whole concept of indefinite detention of American enemy combatants.
MARGARET WARNER: And basically come up — say what the procedure should be.
MARCIA COYLE: Exactly.
MARGARET WARNER: But Justice O’Connor expressed some skepticism in what they had to deal with. Let’s listen to that now. She is discussing with Padilla’s lawyer, Ms. Martinez.
SANDRA DAY O’CONNOR: We’re faced with the situation of the here and now, and what do we do? Do we just turn lose a ticking time bomb?
JENNIFER MARTINEZ: No, your honor. I believe that, first of all, were this court to rule that congressional action was required, I have no doubt that Congress would step into the breach very quickly to provide whatever authorization the executive branch deemed necessary, so I think there is no doubt that Congress would fill that measure.
MARGARET WARNER: Let me ask you about another element. We didn’t play any of it because it was so arcane but there was a long discussion during the Padilla case about a jurisdictional issue. Could that be important? They gave it a lot of time.
MARCIA COYLE: Yes. It could be. This has to do with whether Padilla’s petition for a habeas corpus was basically filed in the right place. It was filed in federal court in New York, which is where he was brought after he was arrested in Chicago. The government says that, under the traditional rules of habeas corpus, you file your petition against the person who holds you in custody, and this petition was filed against Secretary Rumsfeld and not the warden of the brig, where he is now in South Carolina. If the justices want to avoid the merits of the case, they could find there was no jurisdiction and the petition was filed there erroneously.
MARGARET WARNER: But there is no such avenue of escape from confronting the merits in the Hamdi case?
MARCIA COYLE: No, there isn’t. And that case, I think, will be very interested for the issue of how much process of review does a federal court have to give and as well as is the president authorized to detain citizens in this manner?
MARGARET WARNER: Now when we talked last week about the Guantanamo case, you said you’ve learned … and everybody makes prediction based on the arguments. Based on what you heard today and also what you know about the court, could you sense which way they’re leaning or what they’re searching for here?
MARCIA COYLE: I think the court is very trouble by the fact that the detention of an American citizen could be indefinite, could go for years without that citizen having the opportunity to present his or her case. My sense when I left the argument was just a gut sense that government may not win here — may not win easily, may not get everything it asks. I will say though that there are a good number of justices who have spoken about civil liberties in wartime and do believe that they may have to bow to the exigencies of national security.
MARGARET WARNER: And in fact Justice Rehnquist wrote an entire book on it.
MARCIA COYLE: Yes. He did.
MARGARET WARNER: In the discussion with the Hamdi lawyer, they seemed to discuss at some length was their a middle ground? They kept saying to Hamdi’s lawyer, would you be satisfied if at least the military would give you some sort of procedure? What do you make of that?
MARCIA COYLE: Well, I think the court was searching for a middle ground here. Mr. Dunham responded that yes, he thought that that would satisfy at least the question of review, not the question of presidential authority. But he did point out that the government had already said that it wasn’t required to do this and it didn’t want to do this.
MARGARET WARNER: And decision expected this summer.
MARCIA COYLE: That’s correct.
MARGARET WARNER: Marcia, thank you very much.
MARCIA COYLE: Thank you.