A War Like No Other (38 page)

Recently, the Supreme Court created another category of cases deemed to present political questions. This category consists of those cases in which no constitutional standards are readily ascertainable. It was on this basis that the Court dismissed a suit to formulate the standards to govern political gerrymandering in 2004.
¹⁷
The original al-Aulaqi suit is of a different matter altogether. Admittedly, the judiciary has thus far declined to give specific content to due process when the government kills, or assassinates, or targets alleged terrorists. But as revealed by the work of other tribunals, including the Israeli Supreme Court, and, ironically, by the attorney general’s Northwestern speech, the promulgation of such standards is well within the reach of the judiciary, though the standards actually promulgated may vary in some particulars from the ones described or proposed in this chapter. In truth, the question before Judge Bates was analogous to the questions before the Court in
Hamdi v. Rumsfeld.
In
Hamdi,
the Court had first to decide whether a person detained by the military as an enemy combatant was entitled, as a matter
of due process, to an evidentiary hearing on his status and, second, what the rules should be in such a hearing.

In addition to relying on the political question doctrine, Judge Bates dismissed the original al-Aulaqi suit on the ground that the plaintiff—Nasser al-Aulaqi, the father of the alleged target—lacked the standing required by Article III of the Constitution. I have some sympathy with this ruling insofar as Nasser purported to act as the next friend or representative of Anwar. There is no reason to doubt the attachment of Nasser to Anwar, but it is not clear to me that Anwar would have initiated this suit even if he could have done so without putting his life at risk—for example, by sending an electronic message to the lawyers representing Nasser saying that he joined the suit.
¹⁸
As Judge Bates noted, Anwar al-Aulaqi had repeatedly denounced the United States in the most demonic terms, and he would have undermined his political credibility if he were now to turn to the judiciary of the United States to provide protection for him.

On the other hand, as Judge Bates understood, Nasser was not just representing Anwar. He was also seeking to protect his own interest—that of a father—to prevent Anwar from being killed. The interest of a parent in the life of his child has all the requisite specificity and intensity that could possibly be required of a “case” or “controversy” under Article III. This interest is sufficient to ensure a full, adversary presentation of the facts and the law and to make certain that the judicial power is not wasted on idle or academic controversies. It also has the particularized and differentiated character required by the Supreme Court in recent years to make certain that the Court is acting as a court.
¹⁹

Admittedly, the government might have denied the existence of a plan to kill Anwar, which would have rendered the alleged threat too speculative or uncertain to justify the issuance of an injunction or a declaratory judgment. However, dismissing the suit on that ground would be quite different than dismissing it
for lack of Article III standing. One dismissal is based on the nature of the remedy sought and the other on the constitutional limits of the judiciary. In any event, it should be emphasized that the government deliberately refrained from putting forward such a defense to the original al-Aulaqi suit, and that, as history indicates, such a defense would have been an untruth. As it turns out, the lethal attack on Anwar al-Aulaqi on September 30, 2011, was part of a larger program of targeted killings. Best estimates indicate that between 2002 and 2013 there have been more than four hundred drone strikes, principally in Pakistan and Yemen, and that they have killed at least three thousand people.
²⁰

The suit before Judge Bates was most unusual. On the basis of a fear that his son was on a kill list and was soon to be targeted by the government, Nasser al-Aulaqi asked the judge to formulate the legal standards to govern such horrific action. The unusual character of this suit only reflected the unusual nature of the executive’s action. First Bush and now Obama have committed our nation to a war that knows no limits—geographically and perhaps even temporally—and one in which the combatants often appear as ordinary civilians. In so doing, they have adopted policies that confound the traditional division between civilian and military activities, and whose lawfulness cannot be ascertained on the basis of preexisting doctrines and constitutional tests. But the novelty of the challenges presented is not an excuse for judicial passivity. Now that the executive has adjusted the prerogatives of war to a new environment, so must the courts.

NOTES

Chapter 1: In the Shadow of War

This chapter is based on “In the Shadow of War,”
University of Miami Law Review
58 (2003): 449–70.

1
. UN Charter art. 51.

2
. S.C. Res. 1368, UN SCOR, 56th Sess., 4370th mtg., UN Doc. S/RES/1368 (2001).

3
. S.C. Res. 678, UN SCOR, 45th Sess., 2963d mtg., UN Doc. S/RES/678 (1990).

4
. S.C. Res. 687, UN SCOR, 46th Sess., 2981st mtg., UN Doc. S/RES/687 (1991).

5
. S.C. Res. 1441, UN SCOR, 57th Sess., 4644th mtg., UN Doc. S/RES/1441 (2002).

6
. See Neta C. Crawford, “The Best Defense: The Problem with Bush’s Preemptive War Doctrine,”
Boston Review,
February–March 2003, 20.

7
. See Elaine Scarry, “Resolving to Resist,”
Boston Review,
February–March 2004, 6.

8
. See David Cole,
Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism
(New York: The New Press, 2003).

9
. Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003).

10
. See R. on the Application of Abbasi & Anor. v. Sec’y of State for Foreign & Commonwealth Affairs, (2002) EWCA Civ. 1598, para. 64 (UK Sup. Ct. Judicature [C.A.], November 6, 2002),
www.bailii.org/ew/cases/EWCA/Civ/2002/1598.html
.

11
. Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003).

12
. Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002).

13
.
Hamdi,
316 F.3d at 459.

14
. Geneva Convention Relative to the Treatment of Prisoners of War, August 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

15
. “Fact Sheet: Status of Detainees at Guantanamo,” news release, February 7, 2002, 2001-2009.
state.gov/p/sca/rls/fs/7910.htm
.

16
. Padilla
ex rel.
Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002),
opinion adhered to on reconsideration sub nom.
Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2003).

17
. Padilla
ex rel.
Newman v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2003).

18
. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003).

19
. United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002).

20
. Johnson v. Eisentrager, 339 U.S. 763, 793 (1950) (Black, J., dissenting) (citing
Ex parte
Quirin, 317 U.S. 1, 30–31 [1942]).

21
. Plea Agreement, United States v. Lindh, 212 F. Supp 2d 541 (E.D. Va. 2002) (No. 02-37A),
www.justice.gov/ag/plea-agreement
.

22
. Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, art. 4, 6 U.S.T. 3316, 75 U.N.T.S. 135. The pertinent provisions of Article 4 are:

            
A.
 
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

                 
(1)
 
Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

                 
(2)
 
Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

                         
(a)
 
that of being commanded by a person responsible for his subordinates;

                         
(b)
 
that of having a fixed distinctive sign recognizable at a distance;

                         
(c)
 
that of carrying arms openly;

                         
(d)
 
that of conducting their operations in accordance with the laws and customs of war.

                 
(3)
 
Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

23
.
Lindh,
212 F. Supp. 2d at 557n35 (“Thus, all armed forces or militias, regular and irregular, must meet the four criteria if their members are to receive combatant immunity”).

24
. Ibid., 556–57.

25
. 308 F.3d 198 (3d Cir. 2002),
cert. denied,
538 U.S. 1056 (2003).

26
. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).

27
. 540 U.S. 1003, 124 S. Ct. 534 (2003) (Nos. 03-334, 03-343)
(Al Odah
); 540 U.S.
1099, 124 S. Ct. 981 (2004) (No. 03-6696) (
Hamdi
); 540 U.S. 1173, 124 S. Ct. 1353 (2004) (No. 03-1027) (
Padilla
).

28
. “DoD Announces Detainee Allowed Access to Lawyer,” news release, December 2, 2003,
www.defense.gov/Releases/Release.aspx?ReleaseID=5831
.

29
. “Padilla Allowed Access to Lawyer,” news release, February 11, 2004,
www.defense.gov/Releases/Release.aspx?ReleaseID=7070
.

30
. Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003),
vacated,
542 U.S. 952 (2004).

31
. “Excerpts from Marshall News Conference,”
Los Angeles Times,
June 29, 1991, A23.

Chapter 2: The War on Terror and the Rule of Law

This chapter is based on the H.L.A. Hart Lecture in Jurisprudence and Moral Philosophy, which was delivered on May 10, 2005. It was later published as “The War against Terrorism and the Rule of Law,”
Oxford Journal of Legal Studies
26 (2006): 235–356.

1
. Rumsfeld v. Padilla, 542 U.S. 426 (2004).

2
. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

3
. Rasul v. Bush, 542 U.S. 466 (2004).

4
. Padilla
ex rel.
Newman v. Rumsfeld, 243 F. Supp. 2d 42, 49–50 (S.D.N.Y. 2003).

5
. Padilla
ex rel.
Newman v. Bush, 233 F. Supp. 2d 564, 605 (S.D.N.Y. 2002),
opinion adhered to on reconsideration sub nom.
Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2003).

6
. Padilla v. Rumsfeld, 352 F.3d 695, 699 (2d Cir. 2003).

7
. Padilla v. Hanft, 432 F.3d 582, 585 (4th Cir. 2005). On January 4, 2006, the Supreme Court granted the government’s application to transfer Padilla from military to civilian custody to face criminal charges, adding that it “will consider [Padilla’s] pending petition for certiorari in due course.” Hanft v. Padilla, 546 U.S. 1084 (2006). In response to the petition for certiorari, the government insisted that the transfer of Padilla to civilian authority rendered moot the question of whether he can be detained as an enemy combatant. On April 3, 2006, the Court denied Padilla’s petition.

8
. Non-Detention Act of 1971, 18 U.S.C. § 4001(a) (2000).

9
.
Padilla,
352 F.3d at 711.

10
. Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). In its decision in September 2005, rejecting Padilla’s bid for freedom, the Fourth Circuit relied on the same reasoning.

11
.
Hamdi,
542 US at 553 (Souter, J., concurring).

12
. Justice Scalia’s and Justice Stevens’s opinions come close to endorsing the principle of freedom but fall short of doing so by restricting their rule to American citizens and providing that American citizens cannot be held as enemy combatants. Ibid., 554 (Scalia, J., dissenting).

13
. Ibid., 536.

14
. In
Hamdi,
Justice O’Connor says, “Certainly, we agree that indefinite detention for the purposes of interrogation is not authorized.” Ibid., 521. This sentence does not fit into the overall structure of the opinion, which is to impose procedural limitations on the government. But Ronald Dworkin read it as imposing a substantive limitation, also rooted in due process, on the capacity of the government to detain enemy combatants who, like Hamdi, are American citizens. According to Dworkin, American citizens can be held only to prevent them from returning to fight against the United States, and not for coercive interrogation. Ronald Dworkin, “What the Court Really Said,”
New York Review of Books,
August 12, 2004, at 26, 29, available at
www.nybooks.com/articles/17293
.