July 08, 2005,
In the wake of the London bombings, we cannot help but remember that our war against Islamofascists will be a long one and that, for us, the main imperatives for the foreseeable future will be (a) neutralizing terrorists so they cannot return to the battle and attack us, and (b) maximizing our ability to reap intelligence the precious information that is our only hope of preventing future Londons, future Madrids and future 9/11s.
In that light, as President Bush considers candidates for the Supreme Court, it would simply be irresponsible for fans of Attorney General Alberto Gonzales including NRO and others among us who strongly supported his confirmation (see here and here) not to take heed of the recusal issue that has been raised with great persuasive force by Ed Whelan and Ramesh Ponnuru. For it is certain that issues crucial to the war on terror are headed straight for the high Court's lap in the very near future, and national security desperately needs a strong voice, not an empty seat.
It was only a little over a year ago that the Supreme Court ruled on two controversial cases involving unlawful enemy combatants: Hamdi v. Rumsfeld and Rasul v. Bush. (For a full outline, see here.) In Hamdi, a bare majority of the justices (including Justice O'Connor, who wrote the Court's opinion) held that the president was empowered to detain without trial as an enemy combatant an American citizen who had taken up arms against the United States, and that, though such a citizen would be permitted to challenge his detention in court, the habeas corpus proceeding at which that would be done could be very deferential to the executive branch. At least four justices (Scalia, Stevens, Souter, and Ginsburg) were prepared to hold the detention illegal and/or to reject deference to the executive branch in the ensuing hearing.
Worse, in Rasul, the Court held 6-3 (with Justice O'Connor again in the majority) that the alien enemy combatants detained overseas in wartime and held outside (or what was up until then regarded as outside) the jurisdiction of the U.S. courts were permitted to challenge their detentions in federal court.
Significantly, the Court held that its ruling was based not on the Constitution but on the habeas-corpus statute which means that this madness could be ended tomorrow if Congress fixed the statute to make clear that it is not intended to allow the enemy to use our own courts against us as a weapon of war. As Congress has contented itself to stay on the sidelines, however, Rasul promised to be profoundly troublesome and it has more than delivered on that promise.
Exactly what kind of procedures and protections are our enemies entitled to in these unprecedented court proceedings? Do they get counsel? Do they get discovery including battlefield intelligence? Are these to be full-blown trials in which we take soldiers off the battlefield so that they can testify about the circumstances of the particular enemy combatant's apprehension during this firefight or that? How much, in the middle of a war, should federal judges be able to second-guess commanders in the field? If the jurisdiction of the U.S. courts now extends to Guantanamo Bay, Cuba, why shouldn't it extend to Baghdad, or Kandahar, or anyplace else on the globe where American forces are in de facto control of foreign territory? Are the foreign terrorists entitled to Geneva Convention protections even though they themselves pervert the laws and customs of war?
The answer to these and other questions is: We don't know. The Supreme Court provided precious little guidance in Hamdi and Rasul, and Congress has not intervened, so the lower courts are on their own: fashioning new procedures and answering legal questions as they arise, ad hoc. Cases are making their way up the system's chain and they may land in the Supreme Court's lap as early as next term.
As I've previously detailed here, last November a federal district court in Washington, D.C., boldly extended prisoner-of-war safeguards to al Qaeda operative Salim Ahmed Hamdan (reputed to be Osama bin Laden's driver) who is currently being held in Guantanamo Bay. To do so, the judge not only had to rewrite the Geneva Conventions into something vastly different from the treaty ratified by the United States in 1949. He also had to ignore that the U.S. has considered and has for over a quarter-century expressly refused to ratify a treaty (the 1977 Protocol I to the Geneva Conventions) that would grant POW protections to non-state militias.
That case is now on appeal, and undoubtedly heading for the Supreme Court where some of the very justices who seem most comfortable with extending privileges to the enemy during wartime have also recently taken to citing unratified treaties (not to mention other varieties of foreign law) as authority for some of their rulings.
Moreover, in an earlier case that is also part of the Rasul fallout, last October another district judge in Washington ruled in Odah v. United States that alien enemy combatants unlike the vast majority of American prisoners who file habeas-corpus petitions are entitled to have counsel paid for by the U.S. taxpayers they are trying to kill in order to challenge their detention by our military in their war against us.
These cases are immensely important to national security and the war on terror. They may only be the tip of the iceberg. And they will come before a Supreme Court that already sports blocs of justices hospitable to both the notion of enhanced due process for terrorists and the imposition on Americans of elite international sensibilities that have won neither adoption in the manner prescribed by the constitution nor popular favor.
But they would almost certainly not come before a Justice Gonzales. As the president's chief counsel, and now as attorney general, he has, to his great credit, been a key architect of the Bush administration's aggressive policies for combating international terror networks. It is difficult to see how he could avoid having to recuse himself from the resulting cases not just Hamdan and Odah but the others that are sure to follow.
President Bush has quite appropriately made national security the defining issue of his presidency. It remains the defining issue even as he considers court vacancies. So he must ask himself: Are there five reliable votes on the Supreme Court in favor of national security? Are there five votes against the judicial weaving from whole cloth of a new set of deferential due-process norms for international terrorists?
The answer is clearly "no." As long as it is, the president needs to choose a justice who will not only stand firm, but one who can actually hear the cases.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.- Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.