Within His Rights

, The American Lawyer

Critics of President George W. Bush have long claimed that he used the September 11 attacks to expand executive power beyond its proper constitutional bounds. The primary support often cited for this proposition is that the administration has been rebuked on these issues by the courts. Those claims, however, cannot withstand serious scrutiny. Although the president and his advisers have certainly acted assertively in many areas involving the war on terror, they have done so within the Constitution's text and history, in accordance with past presidential practice and available judicial precedent. In fact, if there has been empire building since September 11, it has been by the U.S. courts, not by the president. This is especially true with respect to what is probably the most controversial"at least for lawyers"aspect of the Bush administration's wartime policies: the detention, without criminal charge or trial in the civilian courts, of alleged Al Qaeda and Taliban operatives at Guantánamo Bay.

When Mohammed Atta and his compatriots boarded their scheduled flights on September 11, 2001, the rights of wartime detainees were governed by a handful of major precedents. These cases were generally marked by judicial restraint, especially with regard to foreign nationals held by the United States overseas. In crafting its original detainee policies over the fall and winter of 2001-02, and in defending them against subsequent legal challenges, the Bush administration has principally relied on two critical, if decades-old, U.S. Supreme Court decisions: 1942's Ex Parte Quirin and 1950's Johnson v. Eisentrager. Together, these cases, along with the laws and customs of war that the Supreme Court consulted in reaching its decisions, gave the president sufficient flexibility to detain captured enemies without a civilian trial (at least so long as hostilities continued), where appropriate to charge them either in the civilian courts or in military commissions, and otherwise to deny foreign nationals held outside of the territorial U.S. the opportunity to challenge their detention in the federal courts. In other words, President Bush did not expand executive power to deal with detainees because he had no need to do so. History and precedent supplied him with all the power he needed.

Quirin involved the 1942 trial of eight Nazi agents who had been dispatched by Germany to commit terrorist acts in the American homeland. After the Federal Bureau of Investigation captured the agents, President Franklin Delano Roosevelt decreed their trial by military commission"a form of justice used by the U.S. since the War for Independence. Roosevelt also made clear to Attorney General Francis Biddle that he would not "hand them over to any United States marshal armed with a writ of habeas corpus." The defendants in Quirin claimed a right to trial in civilian courts, but the Supreme Court agreed with the president, upholding their trial and conviction by military commission. Six were electrocuted.

Sixty years later, President Bush quite properly relied upon the Quirin Court's articulation of the distinction between the rights and privileges of "lawful combatants" (generally the regular sol-diers of sovereign states) and "unlawful combatants." Under the Court's definition, which was grounded in the international laws of war, unlawful combatants failed to meet four critical criteria: maintaining a regular command structure, wearing uniforms, carrying arms openly, and otherwise obeying the law of war by, among other things, not attacking civilians. The Bush administration, of course, concluded early on that both Al Qaeda and Afghanistan's Taliban militia failed this all-important test and also determined, as a result, that they were not entitled to rights under the 1949 Geneva Conventions.

The administration's critics have tried to distinguish Quirin's saboteurs from terror detainees be-cause (unlike in World War II) Congress did not "declare war" after September 11, and Al Qaeda (unlike Germany) is not a state actor. Invoking the laws of war, however, does not require a formal declaration-"a practice that actually was waning even before the Constitution was adopted"and Congress specifically authorized the use of military force against those responsible for the September 11 attacks and their allies. Moreover, the Supreme Court has long recognized that a "war" can exist between the United States and non-state actors, such as unrecognized Indian bands. Indeed, much of the "warfare" since World War II has been between states and nonstate actors, in the form of guerrillas and "national liberation movements"-"like Al Qaeda, the very models of unlawful enemy combatants.

The Bush administration has also been criticized for resisting any judicial process for the Guantánamo Bay detainees, but here it has also followed executive branch and Supreme Court precedent. In World War II's aftermath, the Truman administration argued against federal judicial review for alien combatants held overseas, and prevailed. As a result, the Bush administration relied on the Supreme Court's 1950 ruling in Johnson v. Eisentrager in defending its own decision to hold Al Qaeda and Taliban captives outside the United States without judicial process.

In Eisentrager, the Court ruled that German prisoners captured in China and held by U.S. forces in occupied Germany"outside of American territory"were not entitled to seek habeas review of their detention in U.S. federal courts. Justice Robert Jackson, fresh from his own stint in Ger-many as the chief Nuremberg prosecutor, explained the very good and sufficient reasons for this rule as follows:

It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained en-emy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

This was the law in late 2001, when the Bush administration began to formulate its detainee pol-icy.