Carnegie Reporter, Vol. 4, No. 2 | The Law and the War on Terror: Where We Are Now

I.
Almost as soon as the towers fell on September 11, 2001, lawyers began to ask and advise on the question of whether the U.S. government should engage with those responsible—and their associates—as criminals or as enemies in war. Both options seemed logically possible. On the one hand, the attacks perpetrated by al-Qaeda certainly violated U.S. laws, and previous terrorists, including those who planned and executed the attack on the World Trade Center in 1991, had been tried as criminals. On the other hand, these attacks were on an unprecedented scale; came from outside the country; and were understood as acts of war by those who planned them out. The attacks of 9/11 were not the acts of a state, but at least according to al-Qaeda, they were directed at a state.

As it turned out, the U.S. government’s approach to the crime/war dilemma was to treat alleged members of al-Qaeda as both criminals and as wartime enemies, sometimes alternately, and sometimes simultaneously. Congress acted within a week, passing on September 18, 2001, a resolution authorizing the use of military force against those responsible for 9/11, their associates, and those who harbored them. This document, known to initiates by its acronym AUMF, was based in part upon other resolutions that have come to do the legal and political work that a declaration of war did for an earlier generation. Where it differed from its predecessors was in its extraordinarily open-ended description of the adversary. To fight an asymmetric, non-state enemy, Congress seemed to say, the executive branch must be able to range far and wide in targeting, unconstrained by the niceties of a more ordinary war where the enemy forces can be identified by their uniforms and their nation of origin.

The executive branch, we now know, adopted for itself an interpretation of the congressional resolution that was at once embracing and dismissive. It was embracing insofar as the Bush administration read the AUMF as allowing it to detain any suspected al-Qaeda members or associates wherever they might be, to hold them indefinitely and without counsel wherever it chose, and, in some cases, to interrogate them using methods that would otherwise have been prohibited by U.S. and international law. It was dismissive in that the same government that relied on the AUMF for these extraordinary powers also maintained that it would have had the same powers even if Congress had never passed the resolution because, as the sole holder of the executive power and as commander in chief, the president had the inherent constitutional right to do what was necessary to defend a nation under attack—a power that Congress might confirm or even enhance but lacked the power to restrict.

With the two justifications of congressional and constitutional authority in hand, the executive branch undertook its own offensive in the global war on terror. Afghanistan was invaded and the Taliban, who had harbored senior al-Qaeda figures including Osama bin Laden and Ayman al-Zawahiri, fell quickly. In the aftermath, several hundred non-Afghan Muslims who were found in or near Afghanistan were detained, many of them handed to U.S. authorities in exchange for bounty. Their status posed obvious legal problems. They wore no uniforms, and though most carried weapons, so did every herdsman in Afghanistan who could afford one. Their presence as non-Afghans in Taliban Afghanistan strongly suggested some degree of al-Qaeda affiliation, but it was not as if al-Qaeda fighters carried identification. They did not fit the paradigm of ordinary prisoners of war, but neither could it be said immediately that they had committed any crimes.

These men, and some other suspected al-Qaeda members apprehended elsewhere in the world, were transferred to detention facilities hastily constructed on the U.S. naval base in Guantanamo Bay, Cuba—a twilight zone for men whose legal status was itself of a twilight hue. The U.S. had leased Guantanamo in perpetuity when Cuba was little more than an American controlled banana republic. Since Castro’s revolution, the U.S. had continued to exercise control there over Cuban protest—but crucially for the Bush administration’s legal strategy, not sovereignty. Guantanamo was therefore of the United States but not in it. The idea was that the government could do what it wanted there without falling inside the reach of U.S. law, whether statutory or constitutional.

By happenstance, one of these new detainees was American born. This accident meant that Yaser Issam Hamdi came in for special treatment. He was transferred to a military brig in the U.S. There he was joined, metaphorically though not literally (since both men were kept in solitary confinement in different locations) by another American, a Muslim convert named Jose Padilla. Padilla had not been to Afghanistan, but he had apparently consorted with terrorist types in Yemen and Pakistan, and may have been planning attacks on U.S. soil. What Padilla had most in common with Hamdi was that both were held on U.S. soil without criminal charges or access to attorneys or indeed to anyone else. If the Guantanamo detainees were in a place that was off the grid, Hamdi and Padilla were off the legal grid even inside the United States.

II.
More than a year after 9/11, Congress and the president had acted in the war on terror, but the third branch of government, the judiciary, had done exactly nothing. It is a peculiar and quirky—though by no means necessary—feature of the American system of government that the courts only act when they are asked to consider the case of a particular individual who either has been harmed or has been placed in jeopardy of life, limb, or liberty by the state. Despite popular perceptions to the contrary, the courts do not always have the chance to say what the law is. First a case must come before them, and then they must agree to take it.

Over the next several years, however, cases did begin to come to the U.S. courts, and to one degree or another, these cases have been heard and decided. Through them, we begin to develop a picture of the how the law and the war on terror truly interact. The cases of the two Americans, Hamdi and Padilla, were among the first to be dealt with in definitive terms, and they generated some important, disturbing, and fascinating results. First, the executive branch needed to explain how it could hold them incommunicado without any time horizon. To do so the Bush administration gave them a legal name, one that has stuck: illegal enemy combatants. The term makes them more than ordinary criminals and less than soldiers in an enemy army. An illegal enemy combatant is one who has taken up arms against the U.S. but failed to follow the laws of war. According to the Supreme Court, the AUMF authorized the president to detain such combatants until the end of hostilities—which could be indefinitely.

Nevertheless, the Supreme Court held that in Hamdi’s case, an enemy combatant has at least some rights. A plurality of the Court—four justices—said that Hamdi was entitled to due process of law under the Constitution, which usually means the chance to be given notice of the charges against him and the chance to refute them before a nominally neutral decision maker. This was an important precedent, because, at least in principle, it denied the president the authority to hold detainees with no formal review whatever. Two justices—the unlikely combination of the arch-conservative Justice Scalia and the ultra-liberal Justice Stevens—thought that where a U.S. citizen was on U.S. soil where the courts were open for business, he had to be tried as a criminal in a regular trial, not held as an enemy combatant. But this view did not carry the day.

Another principle emerged from Padilla’s case as it played out in the Supreme Court and the lower courts: that the government may treat a suspected terrorist as an enemy or a criminal or both. Padilla had been captured in the U.S., and since the Supreme Court ducked his case by saying it had been brought in the wrong court, it was unclear whether he needed the full-dress trial that had been denied to Hamdi. The government ultimately transferred Padilla’s case to the ordinary courts and charged him with conspiracy.

Although an appellate court expressed its outrage—the government had, after all, been claiming all along that Padilla could not be charged in federal court because of the circumstances of his case—the Supreme Court allowed the transfer from military to civilian control. As of this writing, Padilla remains in confinement, awaiting his day in court.

The phenomenon of the enemy-criminal, though, is not limited to Padilla. In Guantanamo, where those detained are held as enemy combatants, the process of putting them on trial for war crimes has begun. This process had its birth when the Supreme Court held that, despite the Bush administration’s best efforts to put the detainees out of the range of U.S. law, the federal statute conferring the right of habeas corpus on detained persons applied to them even in Guantanamo. This meant that, unless Congress changed the law, the detainees would have their day in court to hear why they were being held and to give reasons for their release.

Congress did later change the law to exclude the Guantanamo detainees from seeking habeas corpus. Nevertheless, the symbolic significance of the Court’s holding was profound. In effect, the Supreme Court said it would not recognize the claim that the U.S. could hold human beings in a place where no law at all would protect them. And in some form, the message got through to the White House. The president put in place tribunals in Guantanamo to try the detainees for war crimes. In another landmark case involving Salim Ahmed Hamdan, bin Laden’s driver, the Supreme Court found those tribunals not to have been authorized by the AUMF in the special form they took. In the aftermath of the Hamdan decision, Congress drafted a new statute delineating the terms of the tribunals, and the president signed it. The law attempts to insulate itself from review by the courts, and it remains to be seen whether the detainees will get the chance to argue that a hearing before a tribunal of military officers falls short of what the Constitution may entitle them to seek.

Practically speaking, then, the Guantanamo detainees have been afforded limited rights to limited tribunals, in which secret evidence may be used and the verdict is rendered by servants of the same military that brings the charges. They are not entitled to lawyers, although some have them anyway. This is hardly due process of the kind recognized in ordinary U.S. criminal trials. However, smart and aggressive lawyers have in some cases managed to publicize their clients’ circumstances effectively enough to get them released to their home countries, which in some cases at last would doubtless mean an improvement in their circumstances.

It is probably too soon to render a final verdict on the way the law and the war on terror have interacted in the U.S. in the immediate post-9/11 years. But it is not too soon to draw some conclusions. Congress has, for the most part, given the president almost everything he could ask for in terms of authority. That has not stopped the executive from, in almost every instance, trying to take more even than Congress offered, stretching the law to its limits and then beyond, often without thinking through the likely consequences of its actions. Meanwhile, the courts have adopted a split strategy. In well-publicized decisions, they have confronted the president and reined in some excesses, thus standing up for the rule of law. In practical terms, though, they have largely accommodated the executive and Congress by charting legal ways for them to do what they had previously sought to do unlawfully. The law stands for our aspirations to fairness and justice—but remains, in the end, in the service of the state.

Noah Feldman specializes in constitutional studies, with particular emphasis on the relationship between law and religion, constitutional design, and the history of legal theory. Feldman was named a Carnegie Scholar for 2005-06. He is a contributing writer for the New York Times Magazine and an adjunct senior fellow at the Council on Foreign Relations. He is the Cecelia Goetz Professor of Law at New York University School of Law. In 2004-05, he was a visiting professor at the Yale and Harvard Law Schools and a fellow of the Whitney Humanities Center. In 2003 he served as senior constitutional advisor to the Coalition Provisional Authority in Iraq, and subsequently advised members of the Iraqi Governing Council on the drafting of the Transitional Administrative Law or interim constitution.