Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He blogs regularly at Balkinization.
Shortly after the 9/11 attacks, in an early draft of the Patriot Act, Attorney General John Ashcroft proposed suspending the writ of habeas corpus indefinitely. The idea was quickly shelved.
Everyone understood the symbolism: Habeas corpus may be the most basic principle of liberty in the Anglo-American tradition. It requires kings and presidents who want to imprison people to explain themselves before a judge, and it lets judges test the legality of the detention. The Federalists who framed the Constitution originally thought a Bill of Rights unnecessary, but they did include protections for habeas corpus as the necessary first line of defense against tyranny and executive overreach. The only way to avoid habeas, the framers said, is for Congress to pass and the president to sign a law publicly declaring a suspension because of "invasion or rebellion when the public safety requires it." Even with the twin towers still smoldering in the fall of 2001, neither the White House nor the Republican majority in Congress had the stomach for that.
Instead, the Bush administration tried to achieve the same result through different methods. Over a four-year period, the Supreme Court has repeatedly pushed back at this strategy. Each time it has left the president the option of taking political responsibility and publicly calling for suspension of habeas corpus. Each time the president has chosen subterfuge instead.
The administration's first strategy was to declare people "enemy combatants" and throw them in military prisons. Even U.S. citizens, it argued, had no constitutional right to counsel to contest their detention. And courts should dismiss any habeas petitions because the president had virtually unreviewable power to detain anyone he labeled an enemy combatant and to keep them in prison indefinitely. In Hamdi v. Rumsfeld, the court rejected this extreme view. The executive could hold even citizens if it acted according to the laws of war—including the Geneva Conventions—but it had to prove in a hearing that a citizen really was an enemy combatant. Unable to meet even that modest standard, the Bush administration let Yasser Hamdi leave the country with a promise never to return, and moved Jose Padilla to the criminal justice system, where he probably should have been in the first place.
What about noncitizens? The Bush administration thought it had an even better strategy. It would find a place close but offshore—like Guantánamo Bay—where courts wouldn't even entertain habeas petitions. There it would enjoy a law-free zone where it could do whatever it liked. The Geneva Conventions might apply, but the administration decided early on to disregard them; Alberto Gonzales, later attorney general, even dismissed them as "quaint." But reports kept leaking out about prisoner abuse, even torture. Within a few years Guantánamo had sullied America's global reputation.
The court saw through the administration's ruse, ruling in 2004 that the Guantánamo detainees had statutory habeas rights and strongly signaling that constitutional guarantees were also at stake. In response, the administration tried to strip the courts of jurisdiction to hear habeas petitions from detainees altogether. It created a set of alternative procedures, the so-called Combatant Status Review Tribunals, to decide who was an enemy combatant. But it still would not officially acknowledge that it was trying to suspend habeas corpus. Instead it argued that it was merely substituting an equivalent remedy.
The problem was that nobody really believed it. The rules for the tribunals were deliberately skewed. Detainees had no right to counsel who would act on their behalf. They had limited opportunities to offer their own proof, while the government could use hearsay and secret evidence. Worse, the government could use information generated through coercion and abuse. Military lawyers were pressured by higher-ups to find that detainees were illegal combatants based on vague or incomplete evidence. Army Lt. Col. Stephen Abraham, who worked as a liaison between the tribunals and intelligence agencies, claimed that the tribunals were essentially rigged to produce a predetermined result.