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Professor Susan Herman
Brooklyn Law School
JURIST Guest Columnist

I was sitting in my office last Thursday afternoon, engaged in one of those scholarly research and writing projects that only seem to get done during a break, when an AP reporter called to ask for my reactions on the new Fourth Circuit decision in the Hamdi case. I decided to read the opinion before commenting, but as I plowed through more than fifty pages, I had a growing sense of futility. The opinion did not contain much new analysis, but was a wholesale acceptance of the government痴 positions. I also realized that no soundbite could express my sense of dismay and alarm over what the panel was saying - that Hamdi can be detained indefinitely at the behest of the Commander-in-Chief - and over what they were really saying - that separation of powers principles dictate that the courts should not second-guess any decision the President makes regarding the 努ar on terrorism.

Yasser Hamdi, as most of us had learned from news accounts before this decision, was apprehended in Afghanistan, brought to Guantanamo Bay, and then, when it was discovered that he is a United States citizen, transferred to a naval brig in Norfolk, Virginia where he has been held incommunicado since April. "Why Virginia?" is the easiest question to answer about this sequence of events. Virginia is in the Fourth Circuit, and the government evidently correctly anticipated that this most conservative federal Court of Appeals would defer to its claim of executive prerogative. The more difficult question concerns the legal basis for Hamdi痴 detention. The Fourth Circuit constructed two bases. First, the court agreed with the government that the President痴 war powers give him plenary authority to make decisions to detain because we are at war. Second, in response to the contention that the President does not have sole authority to declare or define the contours of this 努ar or to make unilateral decisions about detentions (particularly in light of 18 U.S.C. ァ 4001, which provides that no United States citizen may be detained without congressional authorization), the court concluded that Congress痴 September 18, 2001 Use of Force resolution, the basis for the military operations in Afghanistan, provided sufficient authorization for the President to make any decisions regarding the conduct of the 努ar, including detentions. Among the decisions the court said the President is entitled to make is whether or not the congressionally-authorized 努ar ended when victory was declared in Afghanistan.

This case came before the court when Hamdi痴 father, as next friend, brought a habeas corpus petition on his behalf. The Fourth Circuit decision disavows any intention of suspending the writ of habeas corpus, which requires judicial review of detentions. But this decision does effectively suspend habeas corpus review during the indeterminate pendency of 努ar. When the District Court asked the government to respond to the habeas corpus petition, a now famous Defense Department employee named Michael Mobbs provided an affidavit sharing some basic information about Hamdi痴 capture and designation as an enemy combatant. District Judge Robert Doumar found the very general hearsay information proffered inadequate to allow him to conduct the "searching review" required of a court in a habeas case. The Fourth Circuit did not disagree with his reasoning, but circumvented the need for the government to explain its conclusion that Hamdi is an 兎nemy combatant by holding that "searching review" is not required. Instead, the court found the sketchy allegations in the Mobbs affidavit to be sufficient. Hamdi, they ruled, is not entitled to challenge the allegations in the affidavit, because he was captured in Afghanistan, even though he has been in America for many months.

This diluted level of judicial review is tantamount to an abdication. The court valorizes separation of powers principles, including its grandiose construction of the President痴 war powers, at the expense of checks and balances. President Bush痴 representatives have been arguing that the courts should do nothing to impede the President痴 war on terror program, and that the only check on the President should be political we voters don稚 have to reelect him if we disagree with his conduct of the war on terrorism.

I have two very big problems with this argument. First, as a practical matter, we don稚 know what the President is doing in the war on terrorism because the Department of Justice has routinely refused to release information about many issues, including the numbers of people detained, their identities, the bases for detention, etc., on the theory that disclosing such information would compromise national security. Several district judges and the Sixth Circuit Court of Appeals, hearing Freedom of Information Act claims and other constitutional challenges, have found that the government has been exaggerating the need for secrecy. But the courts only act when someone considered to have standing can formulate a claim. Even Freedom of Information Act litigation requires that someone be able to articulate what information is being withheld. Habeas corpus petitions cannot challenge the detention of someone who is being detained in secret. Hamdi痴 father was able to bring a habeas corpus petition on his son痴 behalf only because the government decided in Hamdi痴 case, as in Jose Padilla痴, to announce and publicize his capture. Do we have any way of knowing whether there are more than two United States citizens being detained as enemy combatants, or how many non-citizens are being detained, on what rationales and under what conditions? Political accountability cannot work in the absence of public information, and this administration is notoriously stingy with its information.

Second, as a matter of constitutional principle, judicial review is more necessary, not less, at times when we feel so threatened that we are willing to let our elected leaders detain people at will. Korematsu is a case in point. There the Supreme Court, like the Fourth Circuit in Hamdi, deferred to Executive Branch claims - about security risks allegedly posed by Japanese-Americans - that are now believed to have been seriously exaggerated. The essence of the concept of habeas corpus is that political accountability is no substitute for judicial review. And judicial review requires judges who, like Robert Doumar, are willing to ask questions, instead of like the Court of Appeals judges who deferred their way to the conclusion that the government is entitled to detain Hamdi as an enemy combatant indefinitely simply because he was captured in a zone of active combat.

Even if Hamdi is deemed an enemy combatant, that is not the only question that needs to be addressed in connection with his detention. If Hamdi is a legal combatant, he should be treated as a prisoner of war under the Geneva Convention (held by the court to be unenforceable by private individuals). If he is an illegal combatant, then he should be tried as a criminal, under our accepted criminal procedures. Under the Fourth Circuit痴 reasoning, Hamdi can claim the protections of neither the Geneva Convention nor the Due Process Clause, and so he finds himself in a no man痴 land between these two sets of legal norms. The government has argued that rules of war don稚 apply to the Guantanamo detainees because the war on terrorism isn稚 exactly a war; they have also argued that the war powers of the political branches should entitle them to have total discretion over detentions as well as military operations, because this is indeed a war. If neither set of rules fits this metaphorical war precisely, is it acceptable to have virtually no rules at all? This 努ar has no physical location, and no foreseeable conclusion. Under the Fourth Circuit痴 analysis, the President痴 war powers are expanded to the limits of the metaphor.

The Fourth Circuit, of course, is just one of the Courts of Appeals, and not the highest court in the land. The next step is the Supreme Court, which could of course overrule or modify the Fourth Circuit opinion, if they choose to hear the case. Another next step should be Congress, which has already categorically claimed the authority to limit the President痴 right to detain. Even if we believe that either Congress or the Supreme Court will be more careful about Hamdi痴 liberty than the Fourth Circuit has been, having lower federal courts abdicate is a severe blow. Habeas corpus petitions are brought before federal court judges because Congress is a political body, and because the Supreme Court can only hear a limited number of cases. Federal judges, with their insulation from political pressures, are expected to be the last bastion for those who find their liberty threatened by popular will. While many district judges like Robert Doumar, and Gladys Kessler, and Nancy Edmunds, have been taking this responsibility seriously, the Fourth Circuit is not alone in reversing the direction of early federal court scrutiny of the government痴 actions. The recent Third Circuit opinion allowing the government to close deportation hearings, North Jersey Media Group v. Ashcroft, strikes a unison note of extreme deference to the politics of fear.

Evidently encouraged by the Fourth Circuit victory, the government has now asked Judge Michael Mukasey to reconsider his ruling that Jose Padilla, who was captured on American soil, is entitled to see a lawyer. The argument being made to Mukasey is similar in tone to the arguments the Fourth Circuit accepted: the government has the right to decide what痴 best in the war against terror, and if constitutional rights to liberty or lawyers would get in the way of the government痴 intentions, then those rights must be brushed aside. I hope that the Fourth Circuit痴 deference is not contagious, and that Judge Mukasey holds to his earlier ruling that citizens, at least, still have constitutional rights. There may only be two American citizens currently detained in the new no man痴 land, but that number could easily grow if the courts do not insist on doing their job.

Susan Herman is Professor of Law at Brooklyn Law School, where she teaches Constitutional Law, Criminal Law and Criminal Procedure.

January 13, 2003


JURIST Guest Columnist Susan Herman is Professor of Law at Brooklyn Law School, where she teaches Constitutional Law, Criminal Law and Criminal Procedure. Professor Herman is a widely regarded expert on Supreme Court decisions, particularly in the area of criminal procedure. She regularly lectures to judges and lawyers around the country on behalf of the Federal Judicial Center, bar associations and CLE providers. Among her many professional activities, she serves as General Counsel of the American Civil Liberties Union, and as a member of its National Board of Directors and the Executive Committee. Professor Herman has written several amicus briefs for U.S. Supreme Court cases in the area of criminal procedure and constitutional law, and is often quoted in the media on important Supreme Court cases. She is also the author of numerous articles and chapters on prisoners' rights, civil rights and criminal law and procedure.