Courts Put a Dent in Bush's 'Say-So' Detentions

When it comes to post-9/11 jailing without charges, the president is not a king.

by David Cole
David Cole, a law professor at Georgetown University, is author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism" (New Press, 2003).

December 25, 2003

For two years, the Bush administration has been making the remarkable argument that the president has the right to label any human being anywhere in the world — U.S. citizen or not — an "enemy combatant" (or as Bush himself put it, a "bad guy") and then lock him up indefinitely, incommunicado, without charges, without trial or access to courts or lawyers.

But last week, two U.S. courts of appeal reminded us of one simple fact: It's President Bush, not King George. The president is not above the law, both courts concluded, and in a constitutional democracy the power to imprison cannot be legally unfettered.

The two decisions raise fundamental questions about one of the administration's central tactics in the war on terrorism — preventive detention. That's the theory under which about 700 foreign nationals have been held without charges as enemy combatants at the Guantanamo Bay Naval Base since January 2002 — not because they're being punished for wrongdoing but to prevent them from going back and fighting against us.

That is also the theory under which the administration has detained more than 5,000 foreign nationals within the United States since 9/11, using immigration law and other pretexts. These men have been held in prisons around the country — in some instances for a few days, in others for many months — based on vague suspicions, often predicated on little more than ethnicity, that they might be involved in terrorism.

Yet not one of them has actually been charged with being a member of Al Qaeda or with being involved in the attacks of 9/11. Virtually all have ultimately been cleared by the FBI of any connection to terrorism. Only one has been convicted of any crime related to terrorism, and even that conviction has recently been put in doubt by evidence that the prosecution failed to disclose evidence that its principal witness lied on the stand.

Preventive detention has an ignoble past in the United States. In World War I, we made it a crime to speak out against the draft, ostensibly to prevent interference with the war, and more than 1,000 people went to jail. In the Palmer Raids of 1919-20, the government used immigration law to round up thousands of left-wing foreign nationals deemed "suspicious" after a series of bombings — but not one was charged with the bombings. In World War II we relied on race to intern 110,000 people of Japanese descent, even though there was no evidence that any of them actually planned to engage in espionage or sabotage. And in the 1950s and 1960s, the FBI maintained lists of up to 25,000 "subversives" to be detained in the event of a national emergency.

Citing these abuses, Congress in 1971 prohibited such detentions, providing that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress." The U.S. 2nd Circuit Court of Appeals relied on that statute last week in ruling that Jose Padilla, a U.S. citizen arrested at Chicago's O'Hare Airport, could not be detained on nothing more than the president's say-so.

Few of the detainees, either in the U.S. or at Guantanamo, have been American citizens. But as illustrated by the U.S. 9th Circuit Court of Appeals' simultaneous decision extending judicial review to foreign nationals at Guantanamo, skepticism about unilateral executive detention ought not to be limited to U.S. citizens.

Foreign nationals, no less than U.S. citizens, have a right not to be locked up arbitrarily, based in the Constitution's guarantee that "no person shall be deprived of liberty … without due process." And indefinite incommunicado incarceration without charges, trial or hearing is the definition of arbitrary detention.

Detaining the enemy on the battlefield has of course always been — and remains — a legitimate tool of war. Neither the 2nd nor the 9th Circuit ruled to the contrary. But they both insisted that preventive detention under U.S. jurisdiction must be subject to the rule of law. And the rule of law, like liberty itself, is not a right reserved for U.S. citizens.