Supreme Court rulings in a time of war: three cases, now being tried.

ON April 20, the Supreme Court began hearing arguments in a series of cases arising from the War on Terror, and its rulings will be some of the most consequential in American history. Two of the cases, Rumsfeld v. Padilla and Hamdi v. Rumsfeld, were brought on behalf of American citizens who are being held, in the United States, as "enemy combatants." The third, Rasul v. Bush, involves the detention of non-U.S. al-Qaeda and Taliban prisoners at the Guantanamo Bay Naval Station in Cuba, and the extent to which the federal courts can assert jurisdiction over them. While these cases implicate a variety of legal questions, the key underlying issue is the government's right, under the Constitution and laws of the United States, and including the laws and customs of war, to capture and detain individuals it believes are al-Qaeda, or allied, operatives.

Some of those arguing for the Guantanamo detainees, as well as for Padilla and Hamdi, claim that these men must be promptly tried as criminal suspects (in either civilian or military courts) or freed. Others want some hybrid system established, so as to import criminal-law-type procedures into detention decisions. The Bush administration, however, maintains that the detainees are prisoners captured during war, who may lawfully be held without trial and without access to lawyers until the end of hostilities.

The Supreme Court's decisions in these cases will profoundly affect how the War on Terror is fought, and its prospects for ultimate success. At stake is whether the United States can continue to fight al-Qaeda using military means, or whether it must return to the discredited and unsuccessful pre-September 11 policy of treating the terrorist threat primarily as a criminal-law-enforcement matter.

Under the international laws of war, a belligerent's right to capture and to hold enemy combatants is well established and universally accepted. For that reason, the president, as commander in chief, has exercised the authority to take prisoners in all of America's conflicts. During the two world wars, for instance, hundreds of thousands of enemy combatants were captured and held "indefinitely," i.e., until those wars ended. Some of these captives were, in fact, American citizens--and the detention of U.S. citizens was upheld by the courts. Indeed, in the 1942 Ex parte Quirin case, the Supreme Court made clear that an American who ranges himself against the United States is fully subject to the laws of war as an enemy combatant, regardless of his citizenship or nationality.

For those who claim that the Bush administration invented the status of "enemy combatant"--"one of the most dangerous legal developments in years," according to a woefully misinformed New York Times editorial--Quirin represents something of a problem, especially since the opinion was issued four years before the president's birth. The case involved the capture and trial of eight Nazi agents. These men had been trained as saboteurs by German intelligence, and were dispatched by submarine to the United States with orders to attack industrial and military sites. In its decision, the Supreme Court upheld President Franklin Roosevelt's right to detain and try these men by military commission as enemy combatants. Six of them, including Herbie Haupt, a 22-year-old American citizen, were electrocuted.

Notably, the Quirin Court also made clear the critical distinction between "lawful" or "privileged" combatants, and "unlawful" or "unprivileged" combatants. Unlawful combatants--those who do not wear uniforms, carry their arms openly, or otherwise operate in compliance with the most basic requirements of the laws of war--are subject to military trial and are not entitled to the elaborate rights and privileges accorded to honorable prisoners of war under the 1949 Geneva Conventions, which are reserved to lawful combatants.

It is because of these well-established legal rules that the Guantanamo detainees, although classified as enemy combatants, have been denied POW status, and can be prosecuted under military law, and in military courts. Historically, suppression of unlawful combatants, who by definition operate without regard for military discipline and the rules of war, has been an important policy priority of all civilized nations. In short, both the term and status of "enemy combatant" and "unlawful enemy combatant" long pre-date September 11, and are among the legal concepts that the Supreme Court will have to apply in deciding the Padilla, Hamdi, and Rasul cases, each of which, naturally, presents somewhat different facts.

THE THREE CASES

The first up is Rasul v. Bush, where the justices will decide whether U.S. courts may even consider the legality of detaining non-U.S. nationals at Guantanamo Bay. Although Cuba leased Guantanamo Bay to the United States in 1903 on very favorable terms, Havana retained sovereignty over the area. As a result, the base falls squarely within existing precedents that limit exercises of federal judicial authority beyond U.S. territory. The most important of these precedents is Johnson v. Eisentrager (1950), which involved efforts by several German nationals--captured in China near the close of World War II and tried by U.S. military commission, and then imprisoned in Germany--to have their convictions reviewed by the U.S. courts. In an opinion by Justice Robert Jackson, the Supreme Court rejected these petitions, reasoning that federal court jurisdiction did not extend to aliens being held by U.S. forces abroad. The Court should take the opportunity to reaffirm Eisentrager.

Nevertheless, the very fact that the justices are considering the matter at all gives the lie to one of the more outrageous claims advanced by the president's critics: that Guantanamo constitutes some kind of legal black hole. Moreover, if the Court concludes that the individual Guantanamo cases are not subject to judicial scrutiny, this will not turn the base into a law-free zone--the laws of war will continue to apply there. The courts, it should always be recalled, are not the only means of enforcing the Constitution and laws, and the absence of judicial review does not suggest the absence of law. Instead, as the Eisentrager Court noted, "responsibility for observance and enforcement of these rights [fell] upon political and military authorities."

Although the Rasul case turns on how the Supreme Court interprets its own authority, at issue in the other two cases of Hamdi and Padilla is whether President Bush has properly interpreted his constitutional powers, and correctly applied the laws of war in the fight against al-Qaeda.

The Hamdi case involves a Saudi national captured in Afghanistan who, on account of his birth in Louisiana, is also an American citizen. Owing to this citizenship, Hamdi was transferred from Guantanamo to Virginia, and is now being held in the Charleston, S.C., Navy brig. He is clearly within the territorial reach of the federal courts, and the writ of habeas corpus is available. However, having considered his case, the U.S. Court of Appeals for the Fourth Circuit, sitting in Richmond, decisively affirmed the president's right to take and hold Hamdi as a battlefield detainee. As the court noted in its opinion, the president's constitutional war powers "include the authority to detain those captured in armed struggle," even if they are not U.S. citizens.

The trickiest case is presented by Padilla v. Rumsfeld, which involves the seizure of an American citizen in the United States (Hamdi, of course, was also American but was captured abroad). Jose Padilla was born in Brooklyn. His "career" includes time as a Chicago gang member, and a spell in Florida's jails for a "road rage" incident. In 1994, he converted to Islam; he moved to Egypt four years later, and thence to Pakistan and Afghanistan. According to captured al-Qaeda leader Abu Zubaydah, Padilla proposed to detonate a radiological or "dirty" bomb in the United States, and he was arrested at O'Hare International Airport on May 8, 2002. After initially being held on a "material witness" warrant and having had a public defender appointed for him, Padilla was re-classified as a captured enemy combatant and transferred to military custody.

Padilla's lawyer has challenged this fundamental change in status out of the criminal-justice system, and sought access to him for the purpose of pursuing a writ of habeas corpus and his release. However, New York federal district judge Michael B. Mukasey ruled that the president could designate Padilla as an enemy combatant, even though he was taken captive in the United States, and that this designation was subject only to limited judicial review (similar to the one performed by the Fourth Circuit in the Hamdi case). But Mukasey also concluded that Padilla could have access to a lawyer, if only to assist the court in reviewing his habeas petition. Although his conclusion on this point was tenuous--since habeas corpus is a civil process and the Constitution does not guarantee a right to counsel in such proceedings--the judge's opinion was generally well reasoned and nuanced.

On appeal, however, the United States Court of Appeals for the Second Circuit overruled him. Two members of a three-judge appellate panel (over the strong objection of the third) rejected President Bush's authority to classify American citizens as enemy combatants at all, at least outside of an undefined "zone of combat." The majority ordered Padilla's release--or his prosecution through the criminal-justice system.

The government had relied on the Supreme Court's Quirin decision, but the two majority judges rejected this comparison, largely because, first, they wrongly believed Quirin did not apply in Padilla's case, and second, they misinterpreted a critical statute, the Non-Detention Act.

This act was passed to prevent the internment of genuine civilians (such as Japanese-Americans during World War II), and there is little evidence that it was ever meant to hinder the president's power to detain enemy combatants, including American citizens in the United States, in wartime. In any case, Congress's September 14, 2001, resolution (signed into law by the president four days later) authorizing the use of military force against al-Qaeda and its allies clearly satisfied the Non-Detention Act's requirements.

Overall, the Second Circuit's Padilla opinion amounts to a simple denial that the United States is at war, and also to an insistence that al-Qaeda be combated by means of the criminal-justice system. That, ultimately, will be the question for the Supreme Court. If the president and Congress properly invoked the law of war in responding to the September 11 attacks, then attacking, capturing, and detaining al-Qaeda operatives without trial until the conflict ends is permitted both by international law and by the Constitution of the United States. This is true regardless of whether the captives are American citizens or were taken prisoner in the United States.

AMERICA IS AT WAR

The arguments advanced by the administration's critics to prove that the U.S. is not "at war" with al-Qaeda are, in fact, inconsistent with the Supreme Court's own precedent. First, the fact that Congress has not "declared" war makes no difference whatsoever. The Constitution's ink had barely dried when the Supreme Court ruled, in two cases arising from the 1798-1801 "undeclared" naval war with France, that the laws of war applied to an armed conflict irrespective of a formal declaration.

Second, the U.S. can be "at war" with a group that is not a sovereign state. This was the Supreme Court's ruling in Montoya v. United States (1901), a case involving Indian hostilities. "We recall no instance," said a unanimous Court, "where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the Government has deemed it necessary to dispatch a military force for their subjugation, is sufficient to constitute a state of war."

Finally, assertions that the War on Terror cannot be a war because--like the "war on drugs" or the "war on crime"--it has no obvious end ignore the essentially military character of the conflict, and the September 2001 framework established by Congress, which defined the enemy as follows: "Those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Legally speaking, then, the United States is not at war with "terror," but with the terrorists (and their allies) responsible for September 11. Padilla, Hamdi, and the Guantanamo detainees were all taken prisoner in the context of that conflict.

The alleged terrorists now in custody may well regret their choices. That does not, however, change the legal or moral imperatives governing their detention. Once al-Qaeda's capabilities are so degraded that it is incapable of mounting coordinated attacks against the United States and its allies, the conflict will end. At that time, the detainees must be released--or tried for war crimes and punished. In the meantime, their detention, whether in the United States or at Guantanamo Bay, is no more or less unlawful or outrageous than our detention of prisoners captured in the world wars, Korea, or Vietnam.

Detainees captured and held overseas, and who are not American citizens, are beyond federal-court jurisdiction, although they are legally entitled to be treated humanely. Alleged terrorists who are American citizens, or who are held in the United States, may seek a writ of habeas corpus in the courts, but may nevertheless be held so long as the president shows some evidence for their classification as enemy combatants. Because the detainees are not now being held as criminal defendants (although each may well have future criminal exposure), they are not entitled to criminal trials.

If the government ultimately chooses to prosecute individual detainees for violations of the laws of war, then they will be entitled to due-process rights, including the right to a presumption of innocence and the assistance of counsel. However, because they are combatants, and not civilians, they will enjoy these rights in military, rather than civilian, courts. This, at any rate, is what the Supreme Court's existing precedents clearly teach. Unless the Court chooses to overturn those precedents, Hamdi, Padilla, and their colleagues in Cuba can expect little assistance from that quarter.

Messrs. Rivkin and Casey are partners in the Washington office of Baker & Hostetler LLP and filed an amicus brief supporting the administration's position in the Guantanamo case.