Lies the government told you

by Andrew P. Napolitano

  Since the right to be left alone, thus the right to be free from unlawful restraint, is a natural right, habeas corpus is essential to permit the vindication of that natural right: It permits the person who is suffering from the unlawful restraint to require the government that is restraining him to justify the lawfulness of the restraint to a neutral judge. Nevertheless, Congress and the Bush administration, after September 11th 2001, sought to restrict severely this fundamental right. It was up to the Supreme Court of the United States to reinstate it.

  On June 28th 2004, the Supreme Court issued three decisions concerning the detention of so-called “enemy combatants.”3 In the case of Hamdi v. Rumsfeld,4 local Afghan authorities had seized Yaser Esam Hamdi in 2001, and turned him over to the United States military. The military then transferred him to Guantanamo Bay, Cuba. Upon discerning that Hamdi was in fact an American citizen, the military moved Hamdi to the naval brig in Norfolk, Virginia, and designated him as an “illegal enemy combatant.” By giving him this title, the government saw fit to deny Hamdi due process or the assistance of counsel.

  The government also believed it could detain Hamdi indefinitely. The military treated Hamdi poorly when holding him at Norfolk. Jack Goldsmith of the Justice Department’s Office of Legal Counsel (OLC), upon visiting Norfolk, saw Hamdi curled up in a fetal position in his cell and commented that “it seemed unnecessary to hold a twenty-two-year-old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact.”5 The Pentagon finally permitted Hamdi to communicate with a lawyer in December 2003, more than two years after he was initially incarcerated. He was not permitted to meet with his lawyer in person until February 2004.

  Hamdi’s father managed to file suit on his son’s behalf in federal court in 2002. Judge Robert G. Doumar, a United States District judge in the Eastern District of Virginia and a Reagan appointee who understands the Constitution, ruled that Hamdi, a United States citizen designated as an “enemy combatant,” was entitled to a lawyer, and that the government must put forth sufficient evidence validating his detention.6 In his opinion, Judge Doumar offered a brilliant defense of liberty when he ruled:

  We must protect the freedoms of even those who hate us . . . If we fail in this task, we become victims of the precedents we create. We have prided ourselves on being a nation of laws applying equally to all and not a nation of men who have few or no standards . . . We must preserve the rights afforded to us by our Constitution and laws for without it we return to the chaos of a rule of men and not of laws. . . . 7

  After the Fourth Circuit Court of Appeals reversed Judge Doumar’s decision, Hamdi appealed to the United States Supreme Court. In a 6 to 3 decision, the Court ruled that the federal courts had habeas corpus jurisdiction for an American citizen detained in the United States. Justice Sandra Day O’Connor wrote an inspired majority opinion, in which she stated, “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”8 O’Connor made it clear that the current Court was far different from the one that decided Korematsu. She warned against condensing power into the executive branch and emphasized that “a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens”9 (emphases added).

  While he strongly disagreed with the government’s detention program, Justice Antonin Scalia, in his concurring opinion in Hamdi, went even further than O’Connor and opined that the president’s detention scheme, in which he merely declared persons to be “enemy combatants” in order to incarcerate them and rob them of all legal protections, itself was obviously unconstitutional for American citizens.10

  The Supreme Court’s decision in Rumsfeld v. Padilla,11 decided on the same day as Hamdi, shows how even bright lawyers can sometimes see only the tree in front of them and not the surrounding forest. Jose Padilla, an American citizen, was apprehended at O’Hare International Airport in Chicago and detained as an enemy combatant on the suspicion that he was planning to construct and detonate a “dirty bomb.”12 He was taken to New York and held there as a material witness. His incarceration in New York was clearly unlawful, as there was no proceeding or trial pending in which his testimony was needed as a material witness. Padilla filed a habeas corpus petition from New York, but was later transferred to a military prison in South Carolina. His habeas petition, however, continued to be litigated in the Southern District of New York, and later in the Second Circuit, which ruled for Padilla.

  At the Supreme Court, the Justice Department argued that Padilla could not challenge his incarceration, even though he could potentially be imprisoned for the rest of his life.13 The basis for this argument, according to Paul Clement, the deputy solicitor general, was Congress’s granting of permission to the president to “use of all necessary and appropriate force.”14 The Court, 5 to 4, resolved the case on procedural grounds, holding that Padilla’s habeas petition must have been brought in the judicial district where he was then being detained, in South Carolina, where the government moved him during his incarceration in order to create this procedural default.

  After he refiled his habeas corpus petition in federal court in South Carolina, Padilla scored an impressive victory. The lawyers in the Bush administration, fearing that the Supreme Court would uphold Judge Doumar’s logic in Hamdi, advised President Bush to release Padilla from military confinement. This was done after six years of solitary confinement with no charges pending against him.

  The third case decided on June 28th 2004—and the one most devastating to the torturers in the Bush administration—was Rasul v. Bush.15 The lead plaintiff in the case was Shafiq Rasul,16 an alien being detained at Guantanamo Bay, Cuba. The Bush administration believed that Guantanamo prisoners were entitled to no due process, and it argued this position at the Supreme Court. To open his oral argument, Ted Olson, the solicitor general, stated:

  Mr. Chief Justice, and may it please the Court: The United States is at war. It is in that context that petitioners ask this Court to assert jurisdiction that is not authorized by Congress, does not arise from the Constitution, has never been exercised by this Court.17

  Justice Stevens quickly interrupted, and asked Olson whether the United States could continue to detain people on Guantanamo even if the war hypothetically ended.18 When Olson responded affirmatively, it became clear that the Bush administration was not engaging in a “temporary program.” The “War on Terror” was simply the shield it used to protect its extra-constitutional behavior. Thankfully, the Supreme Court held, 6 to 3, that the United States maintained significant control over Guantanamo Bay such that the federal courts have jurisdiction to hear habeas corpus petitions filed by those detained there.

  In response to Rasul, a major blow to the administration, Congress and the President teamed up against the Court. Congress passed the Detainee Treatment Act of 2005, which stated that “No court or judge shall have jurisdiction to . . . consider a habeas corpus petition from an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” The only route for these detainees was first through military commissions, and then review in the U.S. Court of Appeals for the District of Columbia Circuit.

  The Court struck back in the case of Hamdan v. Rumsfeld,19 in which it held that the relevant provision of the Detainee Treatment Act applied only prospectively, not retroactively, to those petitions that were already pending in federal court at the time the law was enacted.

  Congress, in turn, became even more specific. Section 7 of the Military Commissions Act of 2006 states the following: “No court or judge has jurisdiction over habeas corpus concerning any aspect of the detention, transfer, treatment . . . of an alien who has either been determined to be an enemy combatant or is awaiting such a determination.” The Act applies to all cases without exception, pending on or after the date of enactment.

&n
bsp; On June 12th 2008, the Supreme Court ended the ping-pong match it was having with Congress and the president, and ruled in the case of Boumediene v. Bush,20 that despite the administration’s statutory restrictions on the habeas protection, Guantánamo detainees have a constitutional right to habeas corpus under Article I, Section 9, Clause 2. The Bush administration, despite all its efforts to break the law, could not avoid the Constitution. And since the right to habeas corpus vindicates a natural right (the right to be free from unlawful restraint), no president or Congress can permanently take it away.

  Were Hamdi and Padilla tortured? These two Americans were denied all human contact, for six years in Padilla’s case and for two years in Hamdi’s. The Bush administration was so fanatical and demonic about denying them human contact that whenever it moved them from place to place in the prison system, their eyes were covered, their ears were blocked, their hands and fingers were covered, and their ankles were chained to each other. All this while no charges were pending. Is it any wonder that they babbled and drooled like babies when they first met their attorneys?

  There is simply no authority in any federal statute permitting the government to treat anyone in this manner, much less an American against whom no charges had been filed. This psychological torment was torture, and those who authorized its administration knew it. They knew it because they took an oath to uphold the Constitution, the Eighth Amendment of which prohibits the infliction of “cruel and unusual punishments.” One member of President Bush’s cabinet actually suggested the following nonsensical argument: well, they were not charged with any crimes, so they were not tried or convicted, thus what we did to them was not punishment. Such “logic” would permit the rack and burning at the stake.

  “We Tortured”

  —Susan J. Crawford, a top Bush administration official21

  The Bush administration repeatedly claimed that the United States does not support torture. We have just examined one of its arguments.

  Then-Vice President Dick Cheney, an avowed proponent of torture, which he preferred to call “enhanced interrogation,” has stated that what constitutes torture is in the eye of the beholder, and that “you can get into a debate about what shocks the conscience and what is cruel and inhuman.”22 Debate all you want, Mr. Vice President, but you have laws, international conventions, and the United States Constitution to contend with. The United States Code, for example, defines “torture” quite clearly. Under 18 U.S.C. §2340, “torture” consists of an act committed by a person acting under the color of law, specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control. According to the statute, “severe mental pain or suffering” is

  the prolonged mental harm caused by or resulting from (a) the intentional infliction or threatened infliction of severe physical pain or suffering; (b) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (c) the threat of imminent death; or (d) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

  In addition, the War Crimes Act of 1996 makes it a crime for any United States national to order or engage in the murder, torture or inhuman treatment of a detainee.23 In addition to those who engage in this conduct, any official who authorizes or condones such abuse violates the Act as well. If a detainee dies, the Act imposes the death penalty on those who caused it.

  Furthermore, the United States is required by law to operate under the Geneva Conventions, agreed to in 1948 and 1949, which set the standards in international law for treatment of prisoners. A crucial provision within these standards is “Common Article 3,” which appears in each of the four conventions. Common Article 3 demands that “[p]ersons taking active part in the hostilities . . . shall in all circumstances be treated humanely. . . .”24 (emphases added). The Article goes on to state that “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” shall be prohibited “at any time and in any place whatsoever”25 (emphases added). It also specifically prohibits “outrages upon personal dignity,” including “humiliating and degrading treatment.”26

  The United States military also takes interrogation tactics very seriously. The main goals of military interrogation are effectiveness and compliance with the law.27 The U.S. Army Field Manual 34-52 (FM 34-52) was once the rulebook for military interrogators, and applied to all foreigners, with no exception.28 A key principle of FM 34-52 was that interrogators will only get results if they create a rapport with the detainees.29 Based on this principle, FM 34-52 specified the following four propositions: (1) any interrogation must have a specific purpose; (2) it must be based on rapport; (3) every detainee has a breaking point, although it is not typically known until it has been reached; and (4) susceptibility to interrogation diminishes with the passage of time.30

  FM 34-52 prohibited “physical or mental torture, threats, insults, or exposure to inhuman treatment as a means of or aid to interrogation,” regardless of the enemy.31 The manual provided a broad description of “torture,” defining it as “the infliction of intense pain to body or mind to extract a confession or information, or for sadistic pleasure.”32 Physical torture, according to FM 34-52, includes “any form of beating”; forcing a detainee to stand, sit, or kneel in an abnormal position for an extended period of time; and sleep deprivation.33 According to the manual, abnormal sleep deprivation is an example of mental torture.34

  Unfortunately, but not surprisingly, the Bush administration intentionally disregarded these provisions, sidestepped well-established law, and essentially created a new legal framework under which it was permissible to humiliate and torture people. As stated above, the administration started by trying to keep the federal judicial system out of Guantanamo Bay; one former Bush administration lawyer called it “the legal equivalent of outer space.”35 As early as January 9th 2002, just four months after September 11th, John Yoo, the go-to lawyer in the Justice Department’s Office of Legal Counsel (OLC), on whose ratiocinations the Bush White House relied when it wished to evade or avoid the Constitution and federal law, coauthored a forty-two-page memo concluding that no laws of war, including the Geneva Conventions, applied to the conflict in Afghanistan.36

  Upon seeing the Yoo memo, one State Department lawyer stated, “We were horrified.”37 The chief legal advisor for the Department of State, Bush appointee William Howard Taft IV, sent a memo to Yoo in response, calling his assessment “seriously flawed.”38

  The Bush administration, as you may have noticed throughout its stint at the White House, did not respond well to criticism, or simply opposing points of view. White House Counsel (and later Attorney General) Alberto Gonzales, in late January 2002, wrote a memo to President Bush, noting Secretary of State Colin Powell’s opposition to the Yoo memo.39 Gonzales then made his case for torture, stating that “[t]he nature of the new war places a high premium on other factors, such as the ability to quickly obtain [sic] information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.”40 According to Gonzales, “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions”41 (emphases added).

  Furthermore, Attorney General Gonzales believed that stepping outside of the Geneva Conventions would preserve President Bush’s “flexibility” during the war.42 That is, it would protect administration personnel from prosecution under the 1996 War Crimes Act, which defines a war crime as “any grave breach” of the Geneva Conventions.43 Gonzales’s argument is quite disturbing. He advocated breaking the law by suggesting that the law should not apply. An
d he was President Bush’s lawyer, and he became the nation’s chief law enforcement officer.

  On February 7th 2002, the Bush administration claimed to have conceded to Powell’s skepticism by stating that the United States would apply the Geneva Conventions to the Afghan war.44 However, Taliban and al-Qaeda detainees would still not be protected by the Geneva Conventions.45 This essentially opened the door for harsh treatment and permitted President Bush to use any method he liked to achieve any goal he wished.

  Later, on August 1st 2002, President Bush got more help from Justice Department attorneys, Jay Bybee and again John Yoo. Bybee, like Yoo, was a senior official at the OLC. On August 1st, the OLC issued two memos, which Georgetown Law Professor David Cole later called the “original sin.”46 The memos were written in response to Gonzales’s request for an opinion on whether the United States’ interrogation policies were banned by federal law. Gonzales knew the answer that Bush wanted, but he needed a second opinion.