On October 31, 2017, the world witnessed another shocking terrorist attack, in which a suspect drove a rented pickup truck into a crowd of cyclists and runners in Lower Manhattan. In another sickening spectacle, President Trump stated within hours that he would consider having the suspect designated an enemy combatant and sent to the detention camp at Guantánamo Bay.
While it might be emotionally satisfying to claim that Trump does not have the power to take a Permanent Resident accused of a terrorist attack into military custody (and from thence, only God knows where) but unfortunately any president can point to legal sources to justify this shockingly unconstitutional course of action. If advocates and jurists wish to be prepared to challenge this when-- not if--it occurs, they must be prepared to address the precedents.
In May of 2002, a United States citizen named José Padilla was arrested; on July 9, President Bush ordered his transfer from federal to military custody. His public defender filed a petition for habeas corpus in the Southern District of New York, but the court held that the President had statutory authority to designate an American citizen an enemy combatant. The Second Circuit later disagreed, but by that time Padilla had been sent to the Naval Consolidated Brig in Charleston, South Carolina.
In 2004, the Supreme Court of the United States apparently became transfixed by the technicality of whether a New York court could grant habeas to a prisoner transferred by the executive to avoid that court's orders (this, of course, was precisely what had been barred by the Habeas Corpus Act, 1679 -- a statute well beloved by the Framers of the Constitution and the Bill of Rights). Its opinion was a transparent attempt to avoid ruling on the question of whether the executive had such a power, which allowed it to deprive suspects like Padilla of access to lawyers, of the right to challenge the outrageously false allegations made against them in the media, and removed them from the supervision of the courts, which might moderate or at least make public the appalling conditions of their confinement, which included torture.
This decision was one of the lowest moments for the Supreme Court during the 'War on Terror'. This feckless and deeply disappointing evasion perplexed many legal scholars who had expected the Supreme Court to restore normality by correcting a monstrous injustice. As the dissent noted: "the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the hands of the executive." It should be noted that this dissent was written by Justice Scalia, who was joined by Justice Stevens. Even Scalia had his limits on executive power; unfortunately, his seat on the court is now occupied by Neal Gorsuch, who, as noted in an earlier blog post, was the go-to lawyer inside the Bush Administration when it sought to defend its most horrific abuses.
Padilla's lawyers were forced to go back and start from square one: his petition for habeas corpus wormed its way through the courts once again, this time from South Carolina through the Fourth Circuit. Just before his lawyers were to bring his claims to the Supreme Court of the United States for a second time, Bush released him out of military custody into the federal criminal justice system. In an perplexing decision, the Fourth Circuit refused to vacate its opinion that had concluded the President had these powers. (Padilla v. Hanft, 432 F. 3d 582). The Supreme Court made no note of this.
As Jenny Martinez noted: "The court's patience with the government's procedural games also left open the possibility that other citizens might be similarly detained in the future (particularly in the Fourth Circuit, where the decision finding some legal authority for such detentions remains on the books as precedent, albeit a weakened one)." As I observed in my book, the Supreme Court's evasions and empty rhetoric crystallized into a pattern over time: as I described in an earlier blog post, it was content to let the strategically placed courts of appeal do its dirty work, as demonstrated by the feckless statement it released when it declined to accept the Kiyemba appeal, which allowed the D.C. Circuit to continue to ignore the high dudgeon of its toothless ruling in Boumediene.
During this period--long after the initial shock of the 9/11 had worn off--the Supreme Court was consistent in providing an escape hatch for the executive whenever it addressed its worst abuses. It consistently signaled its willingness to tolerate the executive's violation of the most fundamental rights if Congress agreed. Congressional approval for the indefinite military detention of American citizens arrested in the United States finally came during the Obama Administration, which it would undoubtedly rely upon if a case like this one came before the courts.
Section 1021(b) of the 2012 NDAA authorizes the military detention of any "person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners". (The Obama Administration argued that ISIS was covered by the definition of "associated forces" in other contexts.) It should be noted that Section 1021(e) provides that "nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."
When reading these excerpts, it is essential to remember that in 2012 it was the position of the executive and of certain members of Congress--notably Mitch McConnell and John McCain--that the existing laws and authorities would allow for military detention of citizens and lawful resident aliens arrested within the United States. Amendments to the bill sponsored by Senator Mark Udall that would have specified otherwise were rejected for precisely that reason. While a Presidential Policy Directive imposed a restrictive interpretation of that statute's definition of "covered persons", that is a document that any president can tear up or rewrite at a moment's notice.
More importantly, the Obama Administration had a clear opportunity to disavow the permissive interpretation of that statute in Hedges v. Obama, as the District Court issued an injunction blocking the use of military detention of US suspects. It did not, because it wanted to preserve that power. Accordingly, the Obama Administration appealed against that injunction; the Second Circuit overturned the injunction after it concluded that the plaintiffs did not have standing to challenge the detention regime. Justice Ruth Bader Ginsburg refused to vacate the stay of the injunction issued by the Second Circuit; when a similar petition was forwarded by Justice Scalia to the Court, it was rejected. The Supreme Court then chose not to accept an appeal; by leaving the Second Circuit's conclusion about standing intact, the Court ensured that no one could challenge the constitutionality of the military detention of suspects arrested in the United States--even citizens--unless they themselves were put in military custody, which the executive does precisely to deny access to counsel and to make legal challenges impossible. Padilla v. Hanft, Hedges v. Obama and the 2012 NDAA provided a foundation for tyrannical power that is considerably more solid that what the Bush Administration's horrors rested upon.
In Padilla's case, the Supreme Court proved itself unwilling to address these constitutional issues. Consequently, Padilla was tortured for almost four years at a facilities located inside the United States. He then pleaded guilty to conspiring to commit murder and commit terrorism, although the initial allegations that he planned to create a dirty bomb were apparently based on the translation of a internet joke about creating a nuclear reaction by swinging buckets of uranium around by hand as quickly as possible. Owing to his military detention, the inaccuracies of the government's many allegations against him were not exposed until his criminal trial.
President Trump indicated several days after his initial statement about the Lower Manhattan terrorist attack that he had decided against putting the suspect into military detention. We must remember that this is a power that the Supreme Court repeatedly and intentionally failed to challenge, and which was affirmed and reinforced by Congress, something which the Court has repeatedly used to justify the unjustifiable during the 'War on Terror'.
Claiming that President Trump doesn't have the power to send citizens or green card holders into military custody and to Guantánamo Bay disguises the fact that the last two chief executives fought to preserve that power and to hand it to their successor. Those who would attempt to restore the "very core of liberty" described in Scalia and Stevens' dissent will need to do more than remove a President who has toyed with the idea of putting this into practice, or even removing those who egg him on to do so --particularly Senators McConnell and McCain. Rather, it requires the reimplementation of the structural restraints on executive power that were erected after Watergate and destroyed after 9/11. If Trump's statements were chilling, we should remember the shelter once provided by the rule of law.