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Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases

Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases

by Peter Berkowitz

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Terrorism, the Laws of War, and the Constitution examines three enemy combatant cases that represent the leading edge of U.S. efforts to devise legal rules, consistent with American constitutional principles, for waging the global war on terror. The distinguished contributors analyze the crucial questions these cases raise about the balance between national


Terrorism, the Laws of War, and the Constitution examines three enemy combatant cases that represent the leading edge of U.S. efforts to devise legal rules, consistent with American constitutional principles, for waging the global war on terror. The distinguished contributors analyze the crucial questions these cases raise about the balance between national security and civil liberties in wartime and call for a reexamination of the complex connections between the Constitution and international law.

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Terrorism, the Laws of War, and the Constitution

Debating the Enemy Combatant Cases

By Peter Berkowitz

Hoover Institution Press

Copyright © 2005 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8179-4623-4


The Combatant Detention Trilogy Through the Lenses of History

Seth P. Waxman

HIDDEN WITHIN Justice Sandra Day O'Connor's opinion in Hamdi v. Rumsfeld is a remarkable sentence that has gone largely unnoticed in early commentaries on the decision. Concluding her discussion of the process a lower court might require when considering a habeas corpus petition from an alleged enemy combatant, Justice O'Connor wrote:

We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.

Although this passage is not essential to the Court's holding or reasoning, it is nonetheless important and surprising. Prior to the announcement of the combatant detention decisions, few judges, lawyers, or scholars would necessarily have shared Justice O'Connor's expression of confidence in the courts' ability to balance liberty and security in moments of crisis. In fact, before Hamdi, Padilla, and Rasul, conventional wisdom was that the courts, including the Supreme Court, were poor guardians of liberty during periods of perceived threats to national security.

Yet Justice O'Connor seemed wholly unsurprised that the Court could maintain the difficult and delicate equilibrium between national security and individual liberty. If her confidence was justified — as I hope time will show it was — why did the Court act differently in these cases than it has during previous national security crises? In this essay, I explore two paradigms for answering that question.

The first paradigm places the combatant detention decisions in the context of earlier cases involving individual liberties during war. Several judges and scholars have suggested that the Supreme Court's behavior in these episodes has followed a disappointing cycle of giving excessive weight to national security concerns while a military conflict is active, correcting only partially and regretfully for the damage to individual liberties once security has been restored. The combatant detention cases — coming fewer than three years after September 11, with U.S. troops still fighting two wars overseas, yet striking a strong note of restraint on executive power — seem to break this cycle. But if they do, where does the explanation lie? In the unusual nature of the war in which the nation is engaged? In the executive branch's political and legal overreaching? In the Court's having learned from its earlier mistakes? Or perhaps the very premise of the question is wrong, and there has been no cycle from which the recent cases diverge.

A second lens through which to view these cases is that of interbranch relations and the institutional confidence of the Supreme Court. On this view, the most illuminating points of comparison are not earlier wartime decisions, but rather the nonnational security cases that illustrate the Court's growing self-confidence since World War II in its relations with the other branches of the national government. Perhaps the Court's affirmation of individual rights in the combatant detention cases is a product of this broader rise in judicial assertiveness. The current Court has often accomplished this expansion of its power through a strategy of "judicial minimalism," the practice of circumscribing the specific holdings of individual cases. The detainee cases can be seen as products of a powerful, though restrained, Court.


The view that the Court's wartime jurisprudence reflects a cycle of excessive deference to the executive branch's national security concerns followed by belated affirmations of individual rights has been shared by observers across the political spectrum. For example, Justice William Brennan and Chief Justice William Rehnquist — an unlikely pair of intellectual bedfellows — have been two of the most thoughtful proponents of this cycle thesis. In a 1987 lecture at Hebrew University in Jerusalem, Justice Brennan said:

The trouble in the United States ... has been not so much the refusal to recognize principles of civil liberties during times of war and national crisis but rather the reluctance and inability to question, during the period of panic, asserted wartime dangers with which the nation and the judiciary [are] unfamiliar. ... After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along.

Chief Justice Rehnquist echoed the same theme in his intriguing book, All the Laws but One: Civil Liberties in Wartime. When discussing the application of Cicero's famous adage, inter arma silent leges, "during war law is silent," to the American experience, the Chief Justice wrote:

[T]he maxim speaks to the timing of a judicial decision on a question of civil liberty in wartime. If the decision is made after hostilities have ceased, it is more likely to favor civil liberty than if made while hostilities continue. The contrast between the Quirin and the Japanese internment decisions on the one hand and the Milligan and Duncan decisions on the other show[s] that this, too, is a historically accurate observation about the American system. ... There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently from their predecessors.

Both Brennan and Rehnquist cogently described a recurring cycle in American history: a government crackdown on civil liberties during the crisis that is sustained by the courts, followed by a judicial reconsideration once the crisis has passed, and then forgetfulness when the next crisis emerges.

This cyclical pattern first appeared in the early days of the Republic. In 1798, only fifteen years after the end of the Revolutionary War and less than a decade after ratification of the Constitution, the young United States found itself embroiled in an international crisis. With war between the United States and France looming, the Federalist-dominated Congress passed a series of laws that severely restricted individual rights, especially those of the political opposition. The Sedition Act, in particular, made it a federal crime to "write, print, utter or publish ... any false, scandalous and malicious writing or writings against the government of the United States, or the President of the United States, with the intent to defame ... or to bring them ... into contempt or disrepute."

These acts quickly became weapons to silence Thomas Jefferson's emerging pro-French Republican Party. The government initiated more than two dozen prosecutions under the Sedition Act — all against members of the political opposition, including four leading Republican newspaper editors and three Republican officeholders. In the most famous case, Congressman Matthew Lyon spent four months in prison for publishing materials criticizing President John Adams.

Consistent with the pattern Justice Brennan and Chief Justice Rehnquist have described, the courts refused to protect freedom of expression during this early crisis period. Although the Supreme Court never ruled on the Sedition Act, several lower-court judges, including three Supreme Court justices sitting on circuit, upheld the law. The Federalist-dominated judiciary sometimes even aided the prosecution. During Lyon's trial, for example, the judge told the jury that it only had to decide two issues: whether Lyon had published the pieces and whether the pieces were seditious. In one representative case, the judge instructed the jury that "[i]f a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectually saps the foundation of the government."

Once the quasi war with France cooled off, public hostility to the acts helped to defeat the Federalists and bring Jefferson and his party to power in the elections of 1800. Jefferson quickly pardoned those who had been convicted under the acts, and the new Congress refused to renew the acts when they were reconsidered in 1801. Although these laws were quickly denounced as working outrageous deprivations of liberty, the courts did not officially redeem themselves until 1964, when, in New York Times Co. v. Sullivan, the Supreme Court concluded that "[a]lthough the Sedition Act was never tested in the Court, the attack upon its validity has carried the day in the court of history" (footnote omitted).

The court of history took a long time to render its verdict, though, because during America's next major national security crisis, the Civil War, the government again took several actions that threatened basic constitutional rights in the name of national security. Over the course of the war, President Abraham Lincoln's suspension of the writ of habeas corpus and imposition of martial law led to the arrest of more than 13,000 civilians. At first, these presidential orders were restricted to areas near lines of combat, but they were soon expanded to encompass the entire country.

Apart from the slight wrinkle of Ex parte Merryman, which I address later, the Supreme Court did not have an opportunity to review these measures until after Robert E. Lee had surrendered at Appomattox. In Ex parte Milligan, decided more than a year after the war had ended, the Court finally condemned the deprivations that took place during the war. All nine justices agreed that President Lincoln lacked the constitutional authority to suspend the writ and establish a system of military justice in areas where civilian courts were open and operating. In sweeping language, the Court said, "Martial law ... destroys every guarantee of the Constitution. ... Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish." At the same time, however, the Court acknowledged its own institutional limitations in times of crisis. Almost sheepishly, the Milligan Court confessed:

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.

With its self-conscious recognition that the Court was only able to offer those protections because peace and a sense of security had been reestablished, Milligan stands as a symbol of both judicial strength and judicial weakness in the face of executive national security claims.

The Brennan/Rehnquist cycle repeated itself during World War I. Shortly after the United States entered the war, President Woodrow Wilson persuaded Congress to enact the Espionage Act of 1917. The act made it a crime to make "false statements with the intent to interfere with the operation or success of the military or naval forces of the United States" or "to cause insubordination, disloyalty, mutiny or refusal of duty" in the military or interfere with military recruitment. One year later, Congress bolstered the government's powers by passing the Sedition Act, which made it illegal to willfully "utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about" the U.S. form of government; its Constitution, flag, military forces, or uniform; "or any language intended to bring the [same] into contempt ... or disrepute."

More than 2,000 individuals were prosecuted under these laws. Many of the victims were socialists who had simply denounced the war as a capitalist plot. In several cases, the only evidence used to demonstrate the falsity of the defendant's statements were speeches to the contrary by President Wilson or Congress's resolution supporting the war.

The Supreme Court upheld the constitutionality of the Espionage Act in three terse opinions issued on the same day in 1919. Those decisions were announced a year after World War I had ended but in the midst of another crisis, the first "Red Scare," orchestrated in response to the Russian Revolution. In the leading case, Schenck v. United States, Justice Oliver Wendell Holmes wrote:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. ... When a nation is at war many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. (emphasis added)

When the Court applied this clear-and-present-danger test to both the Espionage and Sedition Acts, it affirmed the convictions of defendants like Charles Schenck, Eugene V. Debs, and Jacob Abrams — men who did nothing more than distribute pamphlets criticizing the draft, write in opposition to the war, or, at worst, urge those drafted to disobey the selective service order.

In 1969, the Supreme Court finally corrected for this rights-restrictive application of the clear-and-present-danger test. In Brandenburg v. Ohio, the Court held that the government may not prohibit "advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This more protective test has survived until today as a robust guarantor of the right to free expression. Coming so long after the World War I panic had ended, though, the Brandenburg test also demonstrates how the crisis cycle again held true: The Court needed the wisdom of hindsight and the cloak of peacetime to enable it to strongly defend basic civil liberties.

My final example, Korematsu v. United States, is the case most commonly associated with the cycle. The history of the Japanese internment and the Supreme Court's tragic response is so well known that a brief description will suffice. During the Second World War, President Franklin Roosevelt signed Executive Order 9066, authorizing curfews and the removal of all people of Japanese descent from the Pacific coast. Under this order, more than 120,000 people were transported to "relocation centers," where some remained for up to four years. Japanese internment was, as Eugene Rostow wrote in 1945, "the worst blow our liberties ha[d] sustained in many years." As war raged, the Supreme Court found the curfews and exclusion of citizens of Japanese ancestry to be constitutional. Upholding the president's executive order, Justice Hugo Black wrote that the court was "unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did." He further stated:

[W]e are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.

Even the order's base racial distinctions were not enough to overcome the pressure to support repressive wartime policies justified on national security grounds. To this day, Korematsu stands as the Court's greatest failure to protect civil liberties during a crisis.

Once the crisis had ended, the judiciary retrospectively corrected in part for the excesses of Korematsu. In 1946, the Supreme Court considered a case arising out of the wartime imposition of martial law in Hawaii. Following Japan's surrender, and more than a year after martial law had been terminated, the Court heard an appeal in Duncan v. Kahanamoku, arising from a civilian's court-martial conviction for assaulting U.S. Marine officers. Citing Milligan, Justice Black, the author of Korematsu, found that the imposition of martial law had been unlawful. "Our system of government," the Court now felt comfortable to say, "clearly is the antithesis of total military rule and the founders of this country are not likely to have contemplated complete military dominance within the limits of a territory made part of this country and not recently taken from an enemy." In effect, the Court reaffirmed the important principle that the judiciary must protect citizens' constitutional rights and protect the separation of powers, even under conditions of war. It only did so, however, after the war had ended.


Excerpted from Terrorism, the Laws of War, and the Constitution by Peter Berkowitz. Copyright © 2005 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Hoover Institution Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, where he chairs the Koret-Taube Task Force on National Security and Law. He was cofounder and director of the Israel Program on Constitutional Government, has served as a senior consultant to the President's Council on Bioethics, and is a member of the Policy Advisory Board at the Ethics and Public Policy Center.

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