A War Like No Other (14 page)

The Constitution vests enormous power in elected officials and requires periodic elections. It also enshrines certain basic values—free speech, religious liberty, racial equality, due process—that have long been the source of America’s identity and inner cohesion. All the branches of government, including
the elected ones, have the right and responsibility to interpret these values, but the Supreme Court has a special responsibility in this domain and thus might properly be considered the guardian of the Constitution. The Court is expected to protect the values of the Constitution from transient majorities and the officials who serve them, although the Court is always subject to the checks inherent in the amendment process; regulations governing the jurisdiction of the federal judiciary; loud and forceful expressions of popular and professional disapproval; and the appointments process. The Court stands above politics but is always inextricably tied to it.

The authority of the Court to set aside ordinary congressional enactments or executive decrees because they conflict with basic values does not presuppose that those who happen to be judges possess any moral expertise. Nor does it assume that the justices are the representatives of the disenfranchised, such as the foreign nationals imprisoned in Guantánamo. Rather, their claim of authority stems from the simple fact that all exercises of the power by judges are bounded by the strictures of public reason. Judges must listen to grievances they might otherwise wish to ignore, hear from all affected parties, and then give a principled response to the grievances before them.

Judges exercise their power within the context of a dispute, but we should not confuse the context in which a power is exercised with the social purposes served by the exercise of that power. The requirement that the Court exercise its power within the context of a concrete dispute is primarily based on instrumental considerations. It seeks to ensure that the Court, situated in an adversarial system and therefore dependent on it, be given a full presentation of the facts and the law. The purpose of the Court is not, however, to resolve the dispute before it but to give, through the reason of the law, concrete meaning and expression to the values of the Constitution.

The need for the Court to defend the Constitution in this way is always great, but it is even greater in times of war, especially when the war is so amorphous and ill defined and generates as much fear as a war against terrorism, where the enemy is invisible and threatens to strike at home. In the midst of such a war, fears are likely to be great, and a small group of outsiders—the prisoners in Guantánamo—can easily be made to shoulder the burden of our self-protective instincts. They are accused of being the agents of our enemy and are conveniently isolated on a distant island. In such a setting, I maintain, robust use of the judicial power—one that projects a clear, unqualified view of the requirements of the Constitution—will further, not diminish, public deliberation and thus democratic values. Such a use of the judicial power does not preclude further action by the political branches but sets the limits of that action and thus provides the framework for their continued deliberations.

Proponents of minimalism may well acknowledge the danger to our liberties from the coordinated actions of the legislative and executive branches but then seek refuge in what may be described as a two-step process—in the words of the manifesto of minimalism,
One Case at a Time.
²⁸
Minimalism’s defenders stress that a decision grounded in a conflict with a statute does not preclude the Court from later striking down a congressional revision of that statute if the Court determines that the revision violates the Constitution. Yet those who have defended the Supreme Court’s minimalism in cases such as
Hamdan,
as Justice Breyer has, on the ground that it is doing no more than requiring the president to consult with Congress and that “[t]he Constitution places its faith in those democratic means,”
²⁹
will, I venture to suggest, be ill disposed, maybe even embarrassed, to ignore or set aside the congressional action endorsing the president’s program—in particular, to try before military commissions foreign nationals accused of terrorism.

Formally, the option remains, but as a purely practical matter it has become encumbered. For an institution that values consistency, there is an inherent awkwardness in invalidating an act of Congress after declaring that “[t]he Constitution places its faith in those democratic means,” especially when the congressional response to the initial decision was so predictable. The field of action has also changed. When the Court eventually does take up the issues that it has avoided—for example, is trial by military commission a violation of due process?—it will have to confront congressional action or decisions not present at the time of
Rasul
or
Hamdan.
Of course, the Court can set aside the congressional judgment, but only after it has decided that it is for itself, not Congress, to resolve these issues. Moreover, the justices, always mindful of the stature of the Court and the limits of its authority, will be keenly aware of the new institutional alignment and are likely to be humbled by it. Instead of defending the constitutional promise of due process against the unilateral actions of the executive, they might, in this second step, have to act against both the president and Congress.

The Dilemma of Each Individual Justice

The argument against minimalism presented here is predicated on an assumption that a majority of the justices is prepared to defend the constitutional rights of Guantánamo detainees but believes that minimalist decisions better serve democratic ideals. This assumption about the disposition of a majority of the justices may be far-fetched. Indeed, minimalism may be so appealing to a portion of the liberal wing of the American academy only because the alternative I offer—a cosmopolitan conception of the Constitution and a robust articulation of the rights it confers—is no longer possible as a practical matter. This alternative vision may be unable to garner five votes. Under this
assumption, minimalism is less a strategy—an active choice by the majority to disregard constitutional questions—and more a characterization or rationalization of the only result that a majority of the justices could reach. Strategy necessarily implies a choice.
³⁰

Of course, choice will always remain for the individual justice, and for him or her minimalism might therefore be viewed as a decisional strategy. On the issue of the availability of habeas, Justice Kennedy rejected a minimalist approach in
Rasul
and turned his back on the majority. In contrast to Stevens, who wrote for the majority, he refused to treat the Guantánamo prisoners’ right to habeas as purely a matter of statutory interpretation. Speaking at the level of general constitutional principles, Kennedy viewed the Constitution as reaching the Guantánamo prisoners and insisted that there were sometimes circumstances—present in the case before him—“in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated.”
³¹
He emphasized that the United States had exercised long-term, exclusive control over Guantánamo, and that the territory was far removed from any hostilities. He was also moved by the fact that the Guantánamo prisoners were being held indefinitely—not just for weeks or months, but for years—making the administration’s claims of military necessity and their objection to habeas weak. No other justice joined Kennedy’s opinion. Breyer, Souter, Ginsburg, and O’Connor silently joined Stevens’s statute-based opinion and acquiesced in his exercise in minimalism.

By June 2006, the time of
Hamdan,
the margins had drawn closer. John Roberts had replaced William Rehnquist as chief justice. Although Roberts did not participate in
Hamdan,
as a circuit judge Roberts had sustained the use of the military commissions.
³²
More to the point, Sandra Day O’Connor had retired
and was replaced by Samuel Alito, who in the
Hamdan
decision sided with Justices Thomas and Scalia in defense of executive power and would have upheld Bush’s order. In
Hamdan
as in
Rasul,
Justice Kennedy wrote a separate opinion, but in this case his primary purpose was to explain why he believed that the Guantánamo military commissions were not authorized by Congress. Breyer, Souter, and Ginsburg were able to join this portion of Kennedy’s opinion, as well as Stevens’s opinion for the Court. (Like Souter and Ginsburg, Kennedy joined Breyer’s separate concurrence.)

To conceive of minimalism as a judicial strategy, now for a hypothetical individual justice, we must assume that at least one justice in the
Hamdan
majority was inclined to find that the Guantánamo commissions were objectionable from the perspective of due process and that the prisoners could use habeas corpus to vindicate their rights. Otherwise, there would be no choice, and thus minimalism could not be conceived of as a strategy of decision. There are hints in
Rasul
and
Hamdan
that this assumption is reasonable.

In the obscure footnote in
Rasul
that I have already mentioned, Justice Stevens referred not to Rehnquist’s opinion in the 1990 Mexican case but to Justice Kennedy’s, in which he argued that the Constitution imposes certain minimum obligations on U.S. officials wherever they act and against whomever they act. In
Hamdan
itself, Justice Stevens attacked the rule excluding the accused from trial on the ground that it represented a departure from, in the words of the Geneva Convention, “a judicial guarantee recognized as indispensable to civilized people”—a standard not very different from due process itself. He also expressed his hostility to the temptation of the executive to use military commissions as tribunals of convenience. Perhaps one of those who joined his opinions in both cases—Souter, Breyer, or Ginsburg—believed that trial before a military commission
offended the Constitution and that the prisoners are entitled to habeas corpus to protect that right.

For our imagined justice, writing a separate opinion in
Hamdan
based on constitutional considerations would not have undermined the judgment itself, for, like the statute-based decision, it would have declared that the ban on habeas by the Guantánamo prisoners was invalid and that the use of military commissions was unlawful. Only the grounds of decision would be different. An artful justice might be able to affirm his or her allegiance to both the statutory and constitutional grounds of decision—for example, by arguing that at a minimum statutory authorization is required, but a statutorily endorsed scheme would offend due process. If that option is not available and the justice feels obliged to file a separate concurrence based only upon due process, Justice Stevens’s opinion might well be deprived of majority status. This would have disappointed Stevens, who was presumably anxious to speak for the Court, and thus would have strained collegial relations. Yet respectful disagreement, even to the point of depriving a colleague of the privilege of delivering a majority opinion, should never be taken as a personal offense. The duties of an officer of the Court are far too weighty.

Filing a separate concurrence might also introduce an element of uncertainty. The majority might be splintered. Some of the majority might have denied that the congressional ban on habeas applied to Hamdan’s petition. Others thought it was applicable but was unconstitutional. Some of the majority might object to trial by military commissions on statutory grounds; others might object on the basis of due process. Under these circumstances, neither the president nor Congress would know whether the illegality could be cured by enacting legislation. Such uncertainty should not, however, be necessarily viewed as a fatal vice.

For one thing, our imagined justice could count on the ingenuity of the political branches to move forward in the face of
whatever uncertainty he or she might create. In the
Hamdi
case, for example, the Court was badly splintered, and it was unclear whether the evidentiary hearing to which the prisoner was entitled should be held before a military tribunal or a federal court. Faced with such uncertainty, the administration entered into an agreement that allowed the prisoner to move to Saudi Arabia, provided he agreed to certain restrictions and renounced his U.S. citizenship.

Alternatively, our imagined justice might be willing to subject the political branches to legal uncertainty in order to fully express deeply held beliefs. This second, more principled stance may well be justified, or at least rationalized, on the theory that his or her job is to safeguard the Constitution and the values it embodies, not to facilitate the choices of the elected branches. More pragmatically, this justice might act on the understanding that a bold, forceful, and—let’s hope—eloquent opinion articulating the underlying constitutional principles, even if joined by no other justice, would enrich the resources of the law. It would not
be
the law, but, as was the case with Justice Brandeis’s separate concurrence in
Whitney v. California,
³³
it might enhance the law by introducing a new strain into the sources from which the law evolves.

A separate opinion by our imagined justice based on due process would also have made an immeasurable contribution to public discourse, including the debate occurring in the legislative chambers or the offices of the executive. It would have underscored the true stakes at issue. Had such an opinion been filed in
Hamdan,
politicians and the citizens they serve could have seen with far greater clarity that habeas corpus is a constitutional imperative and that Guantánamo military commissions are at variance not only with various statutes and maybe even international agreements, but—even more important—with the Constitution.