Constitutional Law
Feb. 21, 2003
Cell Terror
Forum Column - By Erwin Chemerinsky - Since Sept. 11, 2001, the Bush administration and the Ashcroft Justice Department have engaged in many practices that involve unprecedented violations of rights. Among the most troubling has been the claim of the authority to detain individuals without complying with the Constitution and without any semblance of due process. So far, the judiciary simply has deferred to the administration.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
Since Sept. 11, 2001, the Bush administration and the Ashcroft Justice Department have engaged in many practices that involve unprecedented violations of rights. Among the most troubling has been the claim of the authority to detain individuals without complying with the Constitution and without any semblance of due process. So far, the judiciary simply has deferred to the administration.
• Jose Padilla. The most egregious case involves Jose Padilla, an American citizen arrested at Chicago O'Hare Airport for planning to build a "dirty bomb." Although Padilla was arrested on May 8, 2002, no charges have been filed against him. Instead, the administration says that he can be held forever as an "enemy combatant."
On Dec. 4, 2002, the U.S. District Court for the Southern District of New York upheld Padilla's detention. Padilla v. Bush, 2002 WL 31718308 (S.D.N.Y. Dec. 4, 2002). The court said that the government can detain a person as an enemy combatant so long as it shows "some evidence" in support of its action.
The claimed authority of the Bush administration is sweeping and enormously troubling. The administration says that it can hold an American citizen for a crime in the United States without complying with the provisions of the Bill of Rights.
The Framers of the Constitution were deeply distrustful of executive power and of the police. The Fourth Amendment provides that generally before a person is arrested, a neutral judge must find probable cause. The Fifth Amendment provides that before a person can be tried, an independent grand jury must indict the individual. The Sixth Amendment provides that before a person can be imprisoned, an impartial jury must convict.
The Bush administration says that none of these rights applies if it labels the person an enemy combatant. Yet there is no escape clause in the Fourth, Fifth and Sixth Amendments that says that they don't apply when a person is called an enemy combatant rather than a criminal. Nor is there any provision in Article II of the Constitution, which defines presidential power, that gives the president the authority to suspend the Bill of Rights.
There is no precedent for the Bush administration's claim of authority. No Supreme Court case, and for that matter no case of any court in the United States, ever has upheld the government's authority to detain a person indefinitely without complying with the Constitution by labeling the individual an enemy combatant.
In the government's briefs, it has cited to only one Supreme Court case as authority for its position: Ex parte Quirin, 317 U.S. 1 (1942). In Quirin, the court upheld the use of military tribunals for individuals who were apprehended entering the United States to commit acts of sabotage on behalf of Germany.
The opinion, however, did not mention a power for the government to hold people without any trial. There is an enormous difference between trying a person in a military tribunal, as in Quirin, and holding the person without any trial, as is the case with Padilla.
The Bush administration's position has no stopping point. Could those who bombed the federal building in Oklahoma City been held without trial as enemy combatants? Could drug dealers with alleged ties to Colombian drug lords be held indefinitely as enemy combatants as part of the "war" on drugs?
Under the Bush administration's approach, the executive branch has virtually unlimited authority to hold people without constitutional protections by calling them enemy combatants.
The court in Padilla's case said that the government need only show "some evidence" to support its claim that an individual is an enemy combatant. There is no basis in American law for a "some evidence" standard as a basis for denying a person's liberty. It is a very flimsy basis for imprisoning a human being.
• Yaser Hamdi. Yaser Hamdi is an America citizen who was apprehended in Afghanistan, allegedly for fighting for the enemy. His situation is thus identical to that of John Walker Lindh. Like Lindh, Hamdi was brought to the United States. Hamdi is being held in a military prison in South Carolina. Unlike in Lindh's case, the U.S. government has filed no charges against Hamdi and claims that it can hold him forever as an enemy combatant.
Last summer, the 4th U.S. Circuit Court of Appeals reversed a District Court decision and held that Hamdi did not have a right to consult with an attorney. Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002). On Jan. 8, the 4th Circuit reversed a District Court order compelling the government to answer questions justifying the detention of Hamdi. Hamdi v. Rumsfeld, 2003 WL 60109 (4th Cir. Jan. 8, 2003). The court ruled that there is no basis for judicial review of detentions by the United States of U.S. citizens apprehended abroad and detained in the United States. The 4th Circuit said that courts must defer to executive power.
There is no precedent for the 4th Circuit's claim that an American citizen can be imprisoned in the United States without any access to the courts. The court's approval of unreviewable power to imprison a person is at odds with the most basic principles of the Bill of Rights.
• Guantánamo detainees. Almost 600 individuals are imprisoned at Guantánamo, some now for over a year. A story in the L.A. Times on Dec. 22, 2002, quoted top-level executive officials as admitting that the administration now knows that many are being held there by mistake. They now know that many did not participate in or have any information about terrorism. Nonetheless, the officials said that the plan was to hold these individuals indefinitely.
The administration's actions are in clear violation of international law. The Third Geneva Convention requires that there be a "competent tribunal" to determine who is a prisoner of war and who is an unlawful combatant.
Last spring, Secretary of State Colin Powell recognized this provision and said that all who were fighting for the Taliban are prisoners of war, whereas those fighting for al-Qaida are unlawful combatants. Powell acknowledged that international law requires a tribunal for determining the status of these individuals. Almost a year later, no tribunal has been convened.
Moreover, the International Covenant of Civil and Political Rights, ratified by the United States in 1992, states: "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention." Article 9(4), 999 U.N.T.S. 171, 176. Also, the treaty provides that "[n]o one shall be subjected to arbitrary arrest and detention." Article 9(1), 999 U.N.T.S. 171. The United States approved these provisions, but the government clearly is ignoring them.
So far, the courts have been unwilling to review the administration's actions at Guantánamo. A petition for habeas corpus was filed in the District Court for the Central District of California pursuant to a statutory provision that allows a habeas petition to be brought on behalf of another. 28 U.S.C. Section 2242.
In November, the 9th Circuit affirmed the District Court's dismissal of the case on the ground that the petitioners lacked standing because they did not have a relationship with those being held in Guantánamo. Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir. 2002).
Two other lawsuits were filed in District Court in the District of Columbia; one was brought by the Kuwaiti government on behalf of 12 Kuwaiti nationals, and the other was brought by citizens of Australia and the United Kingdom on behalf of relatives.
In Rasul v. Bush, 215 F.Supp.2d 55 (D. D.C. 2002) (the decision in the combined Kuwait and Australia cases), the court held that no court has jurisdiction to hear this claim based on Johnson v. Eisentrager, 339 U.S. 763 (1950). In Johnson, the court ruled that federal habeas corpus was not available to German citizens who had been caught in Japan and were tried and imprisoned in China. The District of Columbia Circuit heard oral arguments in Rasul in early December.
But Johnson does not support the claim that individuals can be imprisoned on U.S. territory with no due process. In Johnson, there was a trial; the Guantánamo detainees are being held with none. In Johnson, the government never brought the defendants to American territory; the military base at Guantánamo is American territory under the terms of the U.S. treaty with Cuba.
Imprisoning a human being is obviously a profound deprivation of freedom. The U.S. Constitution and international law require that it be exercised only subject to procedural protections. The Bush administration's claim that it can imprison a person without due process or judicial review is disturbing and unsupported by any judicial precedent. The courts must assert their basic role in ensuring that any person being imprisoned have some form of judicial review.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California. He was one of the petitioners and co-counsel in the 9th Circuit in Coalition of Clergy.
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