Civil liberties and enemy combatants: why the Supreme Court's widely praised rulings are bad for America

Reason, Jan, 2005 by Harvey Silverglate

It would take an extraordinary effort for a detainee to gather the quantity and quality of evidence required to overcome such a presumption. The vast majority of prisoners would lack the wherewithal to gather the witnesses and documents needed. Hence the presumption becomes, practically speaking, conclusive. Where each side has difficulty presenting its case, the government wins by default.

Remarkably, the Court left open the possibility that the government might be allowed to proceed, using this amorphous and lax evidentiary standard, before a military tribunal rather than anything resembling a civilian court. And even where the government chose to proceed in a civilian court rather than a military tribunal, O'Connor wrote, that court "may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's [evidence]." Given the presumption in favor of the government's evidence, satisfied by a document as imprecise and sketchy as the Mobbs declaration, such a hearing, even in a civilian court, would verge on pointlessness.

"Use All Necessary and Appropriate Force"

Any trial lawyer could tell you there is little practical difference between the government's proposed "some evidence" standard and the Supreme Court's standard. While the Court required that prisoners be allowed to challenge the government's hearsay declarations, it tipped the scales of justice by establishing a barely rebuttable presumption in the government's favor. Erroneously detained people in categories that O'Connor claims would be protected--"the errant tourist, embedded journalist, or local aid worker"--would face the dire possibility of being mistakenly held for the duration of a seemingly endless war.

Finally, one must not lose sight of the fact that the O'Connor opinion confirmed the government's position that a citizen can lawfully be declared an enemy combatant and held, without charge, for an as-yet-undefined and hence potentially unlimited period. O'Connor found support for this extraordinary exercise of power in the Authorization for the Use of Military Force (AUMF) that Congress passed after the September 11 attacks. The AUMF empowered the president to "use all necessary and appropriate force" against those who planned, carried out, or supported the attacks. The Court considered this authorization adequate to justify, by extension, the indefinite holding of "enemy combatants." Indeed, the Court was so solicitous of presidential power that it declined even to declare that specific congressional support was required. It concluded simply that even if such support were necessary, the AUMF would be sufficient.

Antonin Scalia penned a fiery dissent, joined by John Paul Stevens, from O'Connor's compromise. But he did not proceed from a realistic understanding that O'Connor's due process standard amounted to little more than smoke and mirrors. Rather, he approached the problem based on his literal assessment of the Constitution and what it requires. Sympathizing with the Court's attempt to balance "the competing demands of national security and our citizens' constitutional right to personal liberty," he concluded nonetheless that the government had no authority to detain citizens on American soil without due process of law--unless Congress suspended habeas corpus, as the Constitution allows in certain dire emergencies.