After the September 11, 2001, attacks by al-Qaeda on the World Trade Center and the Pentagon, President George W. Bush announced a ‘‘war on terrorism’’—a prolonged fight to disband terrorist cells throughout the world. The Bush administration’s principal weapon in this war has been the asserted exclusive and unreviewable constitutional right to summarily detain, interrogate, and eavesdrop on terrorist suspects, achieved mostly by executive order, military regulation, or other more informal methods.
Despite its express constitutional authority to share warmaking responsibilities with the president, Congress has generally been acquiescent toward the executive on these matters, as exhibited by its fall 2001 enactments of the Authorization for Use of Military Force (AUMF) and the USA Patriot Act. The AUMF enables the president to use ‘‘all necessary and appropriate force’’ against ‘‘nations, organizations or persons’’ that he believes had a role in 9/11, in order to thwart future acts of terrorism. The Patriot Act, which gives federal officials broad and increased authority to intercept communications and conduct surveillance, includes controversial provisions such as secret ‘‘sneak and peek’’ searches of an individual’s home for an indefinite time period; access without a warrant to medical, library, education, and other records; and the ability to seize, using ‘‘national security letters,’’ a variety of business and financial records while imposing a gag order on recipients. These provisions, widely criticized as an abridgement of privacy and free speech, were drafted by the executive and passed with little consideration by Congress. While some of the most controversial Patriot Act provisions were to sunset on December 31, 2005, Congress agreed to a five-week extension of the Act while it considered legislation that, essentially, reauthorized the provisions with little change.
Primary among the administration’s tools in combating terrorism is the use of preventive detention, often holding individuals, including U.S. citizens, incommunicado, indefinitely, and without probable cause, in military prisons. The Bush administration has relied on presidential war powers to justify these detentions, claiming that these practices are unreviewable by courts.
For example, ‘‘enemy combatant’’ detentions have been used to hold individuals in military prisons incommunicado without any right to counsel or judicial review of status. The designation is unilaterally determined by the president, and because enemy combatants are not considered prisoners of war, they are, under the Bush administration doctrine, denied Geneva Convention rights. Special military commissions have been created by executive order to prosecute enemy combatants for war crimes, but the commission rulings evade civilian review, do not fully comply with courts martial procedures, and otherwise ignore due process norms.
The administration’s claim of unreviewable preventive detention authority has been limited by the Supreme Court. In Rasul v. Bush (2004), the Court ruled that alien detainees outside the geographic United States have access to federal courts to challenge their detention through habeas corpus petitions. In Hamdi v. Rumsfeld (2004), the Court held that Hamdi, a U.S. citizen captured during combat in Afghanistan and held incommunicado without counsel or process, has the right to counsel and to challenge his status through due process protections before a neutral fact finder.
Perhaps even more important than their holdings, were the Supreme Court’s statements in Rasul and Hamdi, most clearly articulated by Justice O’Connor, that ‘‘[a] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens’’ and the Constitution ‘‘most assuredly envisions a role’’ for courts ‘‘when individual liberties are at stake.’’
After Rasul and Hamdi, Combatant Status Review Tribunals (CSRTs) were established by the military attempting to encompass the due process requirements established by those cases to ensure the lawfulness of enemy combatant detentions. In In re Guantanamo Detainee Cases (2005), one district court held that those CSRTs were so lacking in procedural fairness that they, too, abridged due process. As of this writing, that decision was on appeal.
Two more enemy combatant cases were pending in the Supreme Court as of this writing. In Hamdan v. Rumsfeld (D.C. Cir. 2005), the Court will consider the lawfulness of the executive’s creation of the special military commissions to try enemy combatants. In Padilla v. Hanft (4th Cir. 2005), a certiorari petition is pending seeking further review of application of the enemy combatant standard to U.S. citizens arrested on U.S. soil.
Individuals have also been detained by the Bush administration indefinitely without probable cause through the use of material witness warrants to testify in terrorism-related grand jury proceedings. In United States v. Awadallah (2nd Cir. 2003), the Second Circuit reversed a lower court ruling, holding that these detentions violate the Fourth Amendment’s prohibition against arrests without probable cause. Material witness warrants continue to be widely used to detain terror suspects indefinitely.
Serious allegations of torture have also arisen in the administration’s detention policies. The atrocities at Abu Ghraib, detainee treatment at Guantanamo Bay, and the aggressive interrogation of prisoners held in secret Central Intelligence Agency ‘‘black sites,’’ have raised serious concerns about the executive’s violation of the antitorture convention and laws.
In response, legislation proposed by Senator John McCain (R-Ariz.) was passed as part of the 2006 Defense Authorization Bill, applying Geneva Convention standards prohibiting cruel, inhuman, or degrading treatment of detainees, although a further rider to that legislative proposal, the Graham-Levin- Kyl amendment, undercuts detainee ability to judicially challenge their treatment, and otherwise limits the kind of habeas jurisdiction recognized by the Supreme Court in Rasul.
A further assertion of exclusive and unreviewable executive authority in the war on terror derives from the president’s assertion of the right without seeking judicial warrants to spy on U.S. citizen domestic communications made to locations abroad. Bipartisan congressional critics have claimed that this presidential surveillance flatly contradicts warrant requirements of the Foreign Intelligence Surveillance Act, which expressly provides that it is the exclusive method for conducting intelligence surveillance of U.S. citizens and that abridgement of that statute is subject to criminal sanctions.
Terrorism is concededly a serious threat. The surveillance and detention practices undertaken unilaterally by the President have, nevertheless, raised serious constitutional concerns. The courts and Congress have begun to find that some balance must exist between rights and security. The struggle to accommodate these seemingly conflicting goals remains an ongoing central issue of the war on terrorism.
I. MICHAEL GREENBERGER
References and Further Reading
Cases and Statutes Cited
See also Due Process; Extremist Groups and Civil Liberties; Grand Jury; Indefinite Detention; National Security; Preventive Detention